Everything Employers Need to Know About Maryland’s New Sick and Safe Leave Law

by Saul Ewing Arnstein & Lehr LLP
Contact

Saul Ewing Arnstein & Lehr LLP

Summary

​On February 11, 2018 the Maryland Healthy Working Families Act (the “MHWFA”) will become effective unless the Maryland Legislature passes a bill to extend the effective date. As of this writing, the chances of the extension passing appear highly unlikely – the Senate twice delayed its vote to approve the extension, with no floor vote currently scheduled. Even if the Senate were to pass the extension, it is doubtful that the House of Delegates will have sufficient time to pass the measure. Details are below, and we will continue to keep you posted of any developments.

Under this new law, employers who employ 15 or more employees must allow their eligible employees to accrue and use up to five days of paid “sick and safe” leave each year. Employers who employ fewer than 15 employees must permit their eligible employees to accrue and use up to five days of unpaid leave each year. Current employees begin accruing leave as of January 1, 2018.

Employers without existing paid leave policies will have to quickly prepare to implement a policy by February 11, 2018, which is when employees can begin taking accrued leave under the new law. Employers that already have leave policies will need to review them for compliance with the new law’s requirements and modify the policies, as necessary.

This Information Sheet describes how the MHWFA affects Maryland employers.

Which Employees Are Eligible to Accrue and Use Sick and Safe Leave?

  • Eligible Employees. Employees who regularly work at least 12 hours per week are eligible to accrue and use sick and safe leave under the law.
  • Ineligible Employees The following employees are not covered by the law:

    • Employees who regularly work less than 12 hours per week;
    • Employees under 18 years of age before the beginning of the year;
    • Certain health or human services industry employees who are called to work by the employer on an as-needed basis and are not employed by a temporary staffing agency;
    • Certain employees employed by a temp agency to provide temporary staffing to another person if the agency does not have day-to-day control over the work assignments and supervision of the employee while s/he is providing the service;
    • Certain construction industry employees who are covered by a bona fide collective bargaining agreement; and
    • Certain agricultural sector employees.

What If Paid Leave Is Already Offered?

No modifications need to be made to an employer’s existing paid leave policy if the policy:

  • Permits an employee to accrue and use leave under terms and conditions at least equivalent to the MHWFA, including for all of the reasons provided for in MHWFA (See below, Permissible Reasons To Use Sick and Safe Leave); or
  • Does not reduce employee compensation for an absence due to sick or safe leave.

Existing policies that do not provide paid leave for all MHWFA sick and safe reasons need to be modified.

Accruing Sick and Safe Leave

  • Employees earn or “accrue” one hour of leave for every 30 hours worked up to a maximum of 40 hours of leave/year. An employer may award employees their entire annual leave at the beginning of the year rather than have employees accrue leave during the year.
  • Employees do not accrue any leave during a two-week period in which the employee works less than 24 hours or a bi-monthly pay period in which the employee works less than 26 hours.
  • Leave accrual began on January 1, 2018 for existing employees. Accrual begins on first day worked for new employees.
  • What is a “Year” For Leave Accrual and Usage? A “year” includes any regular and consecutive 12-month period (such as a calendar, anniversary, or fiscal year), as determined by the employer.

Use of Sick and Safe Leave

When can employees begin using their accrued leave?

  • Existing Employees who have been employed for at least 107 days can begin using accrued leave on the effective date of the MHWFA, currently February 11, 2018.
  • New Employees - after the employee has completed 106 days of employment.

Incremental Use of Leave. Employers must allow employees to use leave in no more than four-hour increments.

Limits on Amount of Leave Used During the Year. An employer may limit the amount of leave an employee holds at any one time to 64 hours and an employee’s use of accrued leave to no more than 64 hours in a year.

Carry-over of Unused Leave. Employers must allow employees to carry-over up to 40 hours of unused leave each year, unless the employer chooses to pay employees for unused leave.

Unused Leave Upon Termination of Employment. Employers are not required to pay employees for their unused leave upon termination of employment. However, if a former employee is rehired within 37 weeks of termination, the employer must reinstate the employee’s unused accrued leave.

Permissible Reasons To Use Sick and Safe Leave. Employees may use leave for the following reasons:

  • To care for or treat a mental or physical illness, injury, or condition of the employee or employee’s family member;
  • To obtain preventative medical care of the employee or employee’s family member;
  • For maternity or paternity leave;
  • For absences made necessary due to domestic violence, sexual assault, or stalking committed against the employee or an employee’s family member, where the leave is being used to obtain medical or mental health attention that is related to the domestic violence, sexual assault, or stalking; or services from a victim services organization related to the domestic violence, sexual assault, or stalking; or legal services or proceedings related to or resulting from the domestic violence, sexual assault, or stalking; and
  • For absences during the time that the employee has temporarily relocated due to the domestic violence, sexual assault, or stalking.

An Employee’s Family Member Includes: the employee’s child including a child for whom the employee stands in loco parentis, regardless of age (or for whom the employee has legal or physical custody or guardianship), parent, legal guardian, spouse, grandparent, grandchild, and sibling, including such relations established by marriage (step relations and, for “parents” only, in-laws) or legal guardianship.

Procedures for Requesting and Using Sick and Safe Leave

  • Required Notice. An employer may require employees to follow the employer’s policy for requesting/reporting leave, such as who to contact, how to contact, and to provide notice. An employer may also require employees to request use of leave as follows:

    • For Foreseeable Leave: No more than 7 days' prior notice
    • For Unforeseeable Leave: As soon as is practicable
  • Denying Leave. An employer may deny a leave request if the employee fails to provide the required notice and the employee’s absence will cause a disruption to the employer.
  • Verifying Validity of Leave Usage. Employers can require employees to provide verification that leave was used in accordance with a permissible reason if:

    • The employee used the leave for more than two consecutive shifts; or
    • The employee used the leave during days 107 and 120 of employment, and agreed to provide verification at the time of hire.

Alternatives to Using Accrued Leave. An employee and employer may mutually consent to the employee working additional hours or trading shifts with another employee during the same or next pay period to make up the hours the employee will miss while using leave. Employees are not required to accept an offer to trade shifts. Employers cannot require an employee requesting to use leave to find a replacement for their absence.

Employer Notice and Record Keeping Requirements

  • Notice of Leave Entitlement. Employers must provide employees a notice of their entitlement to earn sick and safe leave, including:

    • an explanation of how leave is accrued;
    • a statement that the employer is prohibited under MHWFA from taking adverse action against an employee who exercises a right under the law, and from retaliating against employees who file a complaint, bring an action or testify in an action in good faith; and
    • information regarding the right of employees to report alleged violations by filing a complaint with the Commissioner of Labor and Industry (“Commissioner”) or a civil action in court.
  • When wages are paid to employees, the employer must include in employee’s pay stub or through an online system, the amount of the employee’s available accrued leave; and
  • Employers must maintain at least three years of records of accrued and leave usage by employees.

Complaints and Enforcement

If an employee believes that an employer has violated the MHWFA, the employee may file a written complaint with the Commissioner. If, following an investigation, it is determined that a violation has occurred, the employer can be ordered to pay to the employee the full monetary value of any unpaid leave and any actual economic damages, plus an additional amount of up to three times the employee’s hourly wage for each violation, as well as a civil penalty of up to $1,000 per violation. If the employer fails to comply with the order the Attorney General or the employee may bring a civil action to enforce the order. If the employee prevails in the action, the court may award up to three times the value of the employee’s unpaid leave, plus punitive damages, reasonable attorneys’ fees and costs, and injunctive relief. Employees who are found to have brought a complaint under the MHWFA in bad faith can be guilty of a misdemeanor.

Restaurant Industry Provisions

The Act includes special alternative leave arrangements applicable to tipped restaurant employees who are paid under the tip credit provisions of the state wage and hour law. If the tipped employee needs to take sick and safe leave and is willing to work additional hours or trade shifts in the same or next pay period, the employer has discretion, but is not obligated, to offer the employee the choice of:

  • Being paid the applicable standard minimum wage (currently $9.25/hour) during the leave; or
  • Working an additional shift of the same hours in the same or next pay period.

Takeaway

The MHWFA grants up to five days of paid or unpaid sick and safe leave to a vast majority of Maryland employees. For employers without existing leave policies, particularly those with minimum wage or tipped employees, the MHWFA will require a revision of existing policies and an intentional effort to adjust to the new compliance obligations. Importantly, because of the MHWFA’s reporting and notification requirements, employers should pay particular attention to adjusting their accounting systems to provide employees an updated statement in each pay stub regarding their available accrued leave balance. Even for employers with existing paid leave policy, it is important to review the policy to ensure that it meets the minimum requirements of the new law.

Because of the MHWFA’s effective date of February 11, 2018, combined with its penalties for noncompliance, it is important for employers to immediately begin reviewing their policies for compliance with the MHWFA.

 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Saul Ewing Arnstein & Lehr LLP | Attorney Advertising

Written by:

Saul Ewing Arnstein & Lehr LLP
Contact
more
less

Saul Ewing Arnstein & Lehr LLP on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
- hide

JD Supra Privacy Policy

Updated: May 25, 2018:

JD Supra is a legal publishing service that connects experts and their content with broader audiences of professionals, journalists and associations.

This Privacy Policy describes how JD Supra, LLC ("JD Supra" or "we," "us," or "our") collects, uses and shares personal data collected from visitors to our website (located at www.jdsupra.com) (our "Website") who view only publicly-available content as well as subscribers to our services (such as our email digests or author tools)(our "Services"). By using our Website and registering for one of our Services, you are agreeing to the terms of this Privacy Policy.

Please note that if you subscribe to one of our Services, you can make choices about how we collect, use and share your information through our Privacy Center under the "My Account" dashboard (available if you are logged into your JD Supra account).

Collection of Information

Registration Information. When you register with JD Supra for our Website and Services, either as an author or as a subscriber, you will be asked to provide identifying information to create your JD Supra account ("Registration Data"), such as your:

  • Email
  • First Name
  • Last Name
  • Company Name
  • Company Industry
  • Title
  • Country

Other Information: We also collect other information you may voluntarily provide. This may include content you provide for publication. We may also receive your communications with others through our Website and Services (such as contacting an author through our Website) or communications directly with us (such as through email, feedback or other forms or social media). If you are a subscribed user, we will also collect your user preferences, such as the types of articles you would like to read.

Information from third parties (such as, from your employer or LinkedIn): We may also receive information about you from third party sources. For example, your employer may provide your information to us, such as in connection with an article submitted by your employer for publication. If you choose to use LinkedIn to subscribe to our Website and Services, we also collect information related to your LinkedIn account and profile.

Your interactions with our Website and Services: As is true of most websites, we gather certain information automatically. This information includes IP addresses, browser type, Internet service provider (ISP), referring/exit pages, operating system, date/time stamp and clickstream data. We use this information to analyze trends, to administer the Website and our Services, to improve the content and performance of our Website and Services, and to track users' movements around the site. We may also link this automatically-collected data to personal information, for example, to inform authors about who has read their articles. Some of this data is collected through information sent by your web browser. We also use cookies and other tracking technologies to collect this information. To learn more about cookies and other tracking technologies that JD Supra may use on our Website and Services please see our "Cookies Guide" page.

How do we use this information?

We use the information and data we collect principally in order to provide our Website and Services. More specifically, we may use your personal information to:

  • Operate our Website and Services and publish content;
  • Distribute content to you in accordance with your preferences as well as to provide other notifications to you (for example, updates about our policies and terms);
  • Measure readership and usage of the Website and Services;
  • Communicate with you regarding your questions and requests;
  • Authenticate users and to provide for the safety and security of our Website and Services;
  • Conduct research and similar activities to improve our Website and Services; and
  • Comply with our legal and regulatory responsibilities and to enforce our rights.

How is your information shared?

  • Content and other public information (such as an author profile) is shared on our Website and Services, including via email digests and social media feeds, and is accessible to the general public.
  • If you choose to use our Website and Services to communicate directly with a company or individual, such communication may be shared accordingly.
  • Readership information is provided to publishing law firms and authors of content to give them insight into their readership and to help them to improve their content.
  • Our Website may offer you the opportunity to share information through our Website, such as through Facebook's "Like" or Twitter's "Tweet" button. We offer this functionality to help generate interest in our Website and content and to permit you to recommend content to your contacts. You should be aware that sharing through such functionality may result in information being collected by the applicable social media network and possibly being made publicly available (for example, through a search engine). Any such information collection would be subject to such third party social media network's privacy policy.
  • Your information may also be shared to parties who support our business, such as professional advisors as well as web-hosting providers, analytics providers and other information technology providers.
  • Any court, governmental authority, law enforcement agency or other third party where we believe disclosure is necessary to comply with a legal or regulatory obligation, or otherwise to protect our rights, the rights of any third party or individuals' personal safety, or to detect, prevent, or otherwise address fraud, security or safety issues.
  • To our affiliated entities and in connection with the sale, assignment or other transfer of our company or our business.

How We Protect Your Information

JD Supra takes reasonable and appropriate precautions to insure that user information is protected from loss, misuse and unauthorized access, disclosure, alteration and destruction. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. You should keep in mind that no Internet transmission is ever 100% secure or error-free. Where you use log-in credentials (usernames, passwords) on our Website, please remember that it is your responsibility to safeguard them. If you believe that your log-in credentials have been compromised, please contact us at privacy@jdsupra.com.

Children's Information

Our Website and Services are not directed at children under the age of 16 and we do not knowingly collect personal information from children under the age of 16 through our Website and/or Services. If you have reason to believe that a child under the age of 16 has provided personal information to us, please contact us, and we will endeavor to delete that information from our databases.

Links to Other Websites

Our Website and Services may contain links to other websites. The operators of such other websites may collect information about you, including through cookies or other technologies. If you are using our Website or Services and click a link to another site, you will leave our Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We are not responsible for the data collection and use practices of such other sites. This Policy applies solely to the information collected in connection with your use of our Website and Services and does not apply to any practices conducted offline or in connection with any other websites.

Information for EU and Swiss Residents

JD Supra's principal place of business is in the United States. By subscribing to our website, you expressly consent to your information being processed in the United States.

  • Our Legal Basis for Processing: Generally, we rely on our legitimate interests in order to process your personal information. For example, we rely on this legal ground if we use your personal information to manage your Registration Data and administer our relationship with you; to deliver our Website and Services; understand and improve our Website and Services; report reader analytics to our authors; to personalize your experience on our Website and Services; and where necessary to protect or defend our or another's rights or property, or to detect, prevent, or otherwise address fraud, security, safety or privacy issues. Please see Article 6(1)(f) of the E.U. General Data Protection Regulation ("GDPR") In addition, there may be other situations where other grounds for processing may exist, such as where processing is a result of legal requirements (GDPR Article 6(1)(c)) or for reasons of public interest (GDPR Article 6(1)(e)). Please see the "Your Rights" section of this Privacy Policy immediately below for more information about how you may request that we limit or refrain from processing your personal information.
  • Your Rights
    • Right of Access/Portability: You can ask to review details about the information we hold about you and how that information has been used and disclosed. Note that we may request to verify your identification before fulfilling your request. You can also request that your personal information is provided to you in a commonly used electronic format so that you can share it with other organizations.
    • Right to Correct Information: You may ask that we make corrections to any information we hold, if you believe such correction to be necessary.
    • Right to Restrict Our Processing or Erasure of Information: You also have the right in certain circumstances to ask us to restrict processing of your personal information or to erase your personal information. Where you have consented to our use of your personal information, you can withdraw your consent at any time.

You can make a request to exercise any of these rights by emailing us at privacy@jdsupra.com or by writing to us at:

Privacy Officer
JD Supra, LLC
10 Liberty Ship Way, Suite 300
Sausalito, California 94965

You can also manage your profile and subscriptions through our Privacy Center under the "My Account" dashboard.

We will make all practical efforts to respect your wishes. There may be times, however, where we are not able to fulfill your request, for example, if applicable law prohibits our compliance. Please note that JD Supra does not use "automatic decision making" or "profiling" as those terms are defined in the GDPR.

  • Timeframe for retaining your personal information: We will retain your personal information in a form that identifies you only for as long as it serves the purpose(s) for which it was initially collected as stated in this Privacy Policy, or subsequently authorized. We may continue processing your personal information for longer periods, but only for the time and to the extent such processing reasonably serves the purposes of archiving in the public interest, journalism, literature and art, scientific or historical research and statistical analysis, and subject to the protection of this Privacy Policy. For example, if you are an author, your personal information may continue to be published in connection with your article indefinitely. When we have no ongoing legitimate business need to process your personal information, we will either delete or anonymize it, or, if this is not possible (for example, because your personal information has been stored in backup archives), then we will securely store your personal information and isolate it from any further processing until deletion is possible.
  • Onward Transfer to Third Parties: As noted in the "How We Share Your Data" Section above, JD Supra may share your information with third parties. When JD Supra discloses your personal information to third parties, we have ensured that such third parties have either certified under the EU-U.S. or Swiss Privacy Shield Framework and will process all personal data received from EU member states/Switzerland in reliance on the applicable Privacy Shield Framework or that they have been subjected to strict contractual provisions in their contract with us to guarantee an adequate level of data protection for your data.

California Privacy Rights

Pursuant to Section 1798.83 of the California Civil Code, our customers who are California residents have the right to request certain information regarding our disclosure of personal information to third parties for their direct marketing purposes.

You can make a request for this information by emailing us at privacy@jdsupra.com or by writing to us at:

Privacy Officer
JD Supra, LLC
10 Liberty Ship Way, Suite 300
Sausalito, California 94965

Some browsers have incorporated a Do Not Track (DNT) feature. These features, when turned on, send a signal that you prefer that the website you are visiting not collect and use data regarding your online searching and browsing activities. As there is not yet a common understanding on how to interpret the DNT signal, we currently do not respond to DNT signals on our site.

Access/Correct/Update/Delete Personal Information

For non-EU/Swiss residents, if you would like to know what personal information we have about you, you can send an e-mail to privacy@jdsupra.com. We will be in contact with you (by mail or otherwise) to verify your identity and provide you the information you request. We will respond within 30 days to your request for access to your personal information. In some cases, we may not be able to remove your personal information, in which case we will let you know if we are unable to do so and why. If you would like to correct or update your personal information, you can manage your profile and subscriptions through our Privacy Center under the "My Account" dashboard. If you would like to delete your account or remove your information from our Website and Services, send an e-mail to privacy@jdsupra.com.

Changes in Our Privacy Policy

We reserve the right to change this Privacy Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our Privacy Policy will become effective upon posting of the revised policy on the Website. By continuing to use our Website and Services following such changes, you will be deemed to have agreed to such changes.

Contacting JD Supra

If you have any questions about this Privacy Policy, the practices of this site, your dealings with our Website or Services, or if you would like to change any of the information you have provided to us, please contact us at: privacy@jdsupra.com.

JD Supra Cookie Guide

As with many websites, JD Supra's website (located at www.jdsupra.com) (our "Website") and our services (such as our email article digests)(our "Services") use a standard technology called a "cookie" and other similar technologies (such as, pixels and web beacons), which are small data files that are transferred to your computer when you use our Website and Services. These technologies automatically identify your browser whenever you interact with our Website and Services.

How We Use Cookies and Other Tracking Technologies

We use cookies and other tracking technologies to:

  1. Improve the user experience on our Website and Services;
  2. Store the authorization token that users receive when they login to the private areas of our Website. This token is specific to a user's login session and requires a valid username and password to obtain. It is required to access the user's profile information, subscriptions, and analytics;
  3. Track anonymous site usage; and
  4. Permit connectivity with social media networks to permit content sharing.

There are different types of cookies and other technologies used our Website, notably:

  • "Session cookies" - These cookies only last as long as your online session, and disappear from your computer or device when you close your browser (like Internet Explorer, Google Chrome or Safari).
  • "Persistent cookies" - These cookies stay on your computer or device after your browser has been closed and last for a time specified in the cookie. We use persistent cookies when we need to know who you are for more than one browsing session. For example, we use them to remember your preferences for the next time you visit.
  • "Web Beacons/Pixels" - Some of our web pages and emails may also contain small electronic images known as web beacons, clear GIFs or single-pixel GIFs. These images are placed on a web page or email and typically work in conjunction with cookies to collect data. We use these images to identify our users and user behavior, such as counting the number of users who have visited a web page or acted upon one of our email digests.

JD Supra Cookies. We place our own cookies on your computer to track certain information about you while you are using our Website and Services. For example, we place a session cookie on your computer each time you visit our Website. We use these cookies to allow you to log-in to your subscriber account. In addition, through these cookies we are able to collect information about how you use the Website, including what browser you may be using, your IP address, and the URL address you came from upon visiting our Website and the URL you next visit (even if those URLs are not on our Website). We also utilize email web beacons to monitor whether our emails are being delivered and read. We also use these tools to help deliver reader analytics to our authors to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

Analytics/Performance Cookies. JD Supra also uses the following analytic tools to help us analyze the performance of our Website and Services as well as how visitors use our Website and Services:

  • HubSpot - For more information about HubSpot cookies, please visit legal.hubspot.com/privacy-policy.
  • New Relic - For more information on New Relic cookies, please visit www.newrelic.com/privacy.
  • Google Analytics - For more information on Google Analytics cookies, visit www.google.com/policies. To opt-out of being tracked by Google Analytics across all websites visit http://tools.google.com/dlpage/gaoptout. This will allow you to download and install a Google Analytics cookie-free web browser.

Facebook, Twitter and other Social Network Cookies. Our content pages allow you to share content appearing on our Website and Services to your social media accounts through the "Like," "Tweet," or similar buttons displayed on such pages. To accomplish this Service, we embed code that such third party social networks provide and that we do not control. These buttons know that you are logged in to your social network account and therefore such social networks could also know that you are viewing the JD Supra Website.

Controlling and Deleting Cookies

If you would like to change how a browser uses cookies, including blocking or deleting cookies from the JD Supra Website and Services you can do so by changing the settings in your web browser. To control cookies, most browsers allow you to either accept or reject all cookies, only accept certain types of cookies, or prompt you every time a site wishes to save a cookie. It's also easy to delete cookies that are already saved on your device by a browser.

The processes for controlling and deleting cookies vary depending on which browser you use. To find out how to do so with a particular browser, you can use your browser's "Help" function or alternatively, you can visit http://www.aboutcookies.org which explains, step-by-step, how to control and delete cookies in most browsers.

Updates to This Policy

We may update this cookie policy and our Privacy Policy from time-to-time, particularly as technology changes. You can always check this page for the latest version. We may also notify you of changes to our privacy policy by email.

Contacting JD Supra

If you have any questions about how we use cookies and other tracking technologies, please contact us at: privacy@jdsupra.com.

- hide

This website uses cookies to improve user experience, track anonymous site usage, store authorization tokens and permit sharing on social media networks. By continuing to browse this website you accept the use of cookies. Click here to read more about how we use cookies.