Effective February 11, 2018, Maryland’s Healthy Working Families Act (the “Act”), Maryland’s sick leave law, will go into effect. Although Governor Larry Hogan had vetoed the measure, the Maryland General Assembly overrode the Governor’s veto on January 11, 2018, leaving employers scrambling to prepare for implementation. Following are some of the pertinent, key provisions from the Act that will guide employers in making appropriate policy changes.

Does Your Business Have to Comply?

The Act covers all employers, but employers with more than fifteen employees must provide paid sick leave, and those with fewer than fifteen employees are only required to provide unpaid sick leave. The number of employees an employer has is determined by calculating the average monthly employee count (full-time, part-time, temporary, and seasonal) for the prior twelve-month period. The provision covers MOST employees, only excluding those who do not “work regularly” for at least twelve hours per week. That said, employers do not have to count certain minor or contract workers, real estate brokers, unionized workers covered by a collective bargaining agreement that specifically waives the requirement, or agriculture workers.

Earning and Using Sick and Safe Leave

Employers must allow employees to earn sick leave at a rate of at least one hour for every thirty hours worked, with a minimum of forty hours a year. Employees must be allowed to carry over earned sick and safe leave from year to year, although the carryover amount may be capped at sixty-four hours. Likewise, the amount of sick leave an employee can use in a year may also be capped at sixty-four hours. In certain circumstances, generally where an employee is working few hours, employers do not have to allow employees to accrue sick leave. A good example is an employee who works fewer than 24 hours in a 2 week period.

Employees must be permitted to use sick leave for the following reasons:

  • Preventive medical care for the employee or a family member;
  • Maternity or paternity leave;
  • Absences that are necessary due to domestic violence, sexual assault, or stalking committed against the employee or a family member; and
  • Care or treatment of the employee’s or a family member’s mental or physical illness, injury, or conditions.

Employees are generally not required to provide more than 7 days advance notice of the need to take sick leave unless the need is not foreseeable, in which case the employee must only notify the employer “as soon as practicable.”

What Happens if I Do Not Provide Sick Leave?

Like the Maryland wage payment statute, the Maryland Department of Labor, Licensing, and Regulation may assess wage payment and economic damages for failure to comply with the Act, including treble damages for wage loss, $1,000 per employee in fines, and reasonable attorneys’ fees.

What If I am a Virginia Employer?

The law may apply to your business even if your business is located in Virginia or another state. Maryland wage and hour law has always had a long reach, and the Act continues this tradition. If you have employees that telework from Maryland or if their work occasionally takes them to Maryland, the Act may apply. This is because the term “employee,” is not defined in the Act, and it is unclear whether employees who typically work out of state and who occasionally work in Maryland are covered. What we do know is that courts in Maryland have often favored applying wage and hour laws liberally to those employees who do their work within Maryland, even if they are just telecommuting. Therefore, employers should take care to evaluate their sick and telework policies to ensure that they are managing their risk.

Although the Act may be an adjustment for many employers, states have been increasingly implementing sick leave laws, and the Maryland law is not that different from the others. We encourage employers to use this opportunity to ensure that their leave and telecommuting policies are reviewed and are compliant with all state laws in which they employ workers.

About the Author: Nichole Atallah is a partner and heads the Labor & Employment Law Group. She may be reached at [email protected] or at 202.857.1000.