Employment Law Update

Montgomery County became the first Maryland jurisdiction to pass a mandatory paid sick leave law (the “Sick and Safe Leave Law”).   Neighboring District of Columbia passed a similar law in 2008.  The County Council found that the absence of earned sick and safe leave often results in the unnecessary spread of disease in the County when employees decide to work while sick or send a sick child to day care or school.  The Council also claims that the law will protect employers who already provide paid sick leave from unfair competition by employers who do not provide paid leave. 

Which Employers Are Covered?  

All entities or individuals doing business in the County (including the County government) that employ one or more persons in the County, must provide paid sick and safe leave.

Which Employees Are Eligible for Leave Benefits Under the Law? 

Covered employees include any person permitted or instructed to work or be present by an employer in the County, including domestic workers. 

The term “Employee” does not include:

• an individual who: (A) does not have a regular work schedule with the employer; (B) contacts the employer for work assignments and is scheduled to work the assignments within 48 hours after contacting the employer; (C) has no obligation to work for the employer if the individual does not contact the employer for work assignments; and (D) is not employed by a temporary placement agency.

• an individual who regularly works eight (8) hours or less each week; or

• an individual who is an independent contractor.

How Much Leave Accrual is Required? 

Employers with five or more employees must provide sick and safe leave at a rate of at least one (1) hour for every 30 hours an employee works in the County, up to 56 hours of paid leave in a calendar year.  Employers with fewer than five (5) employees must provide leave rate of at least one (1) hour for every 30 hours an employee works in the County, up to 32 hours of paid earned sick and safe leave and 24 hours of unpaid earned sick and safe leave in a calendar year. 

Employers must provide employees paid sick and safe leave for work performed in the County at the same pay rate and with the same benefits as the employee normally earns. (Tipped employees must be paid at least the County minimum wage for each hour the employee uses earned sick and safe leave).

To calculate the rate of accrual of earned sick and safe leave for an employee who is exempt from the overtime provisions of the federal Fair Labor Standards Act, an employer must assume the employee worked the number of hours worked in the employee’s normal workweek, up to 40 hours each workweek.

Employers can comply with the Sick and Safe Leave Law by adopting or retaining a general paid leave policy, such as a paid time off (PTO) policy, that allows employees to use leave for a variety of purposes (e.g., vacation, illness, personal, etc.) so long as the policy meets the minimum requirements of  the law. 

For What Purposes Can Paid Sick and Safe Leave be Used? 

An employee may use earned sick and safe leave:

• to care for or treat the employee's mental or physical illness, injury, or condition

• to obtain preventive medical care for the employee or the employee's family member

• to care for a family member with a mental or physical illness, injury, or condition

• if the employer's business has closed by order of public official due to a public health emergency

• if the school or child care center for the employee's family member is closed by order of a public official due to a public health emergency

• to care for a family member if a health official or health care provider has determined that the family member's presence presents a risk to the community because of  exposure to a communicable disease

• if the absence from work is due to domestic violence, sexual assault, or stalking committed against the employee or the employee's family member and the leave is used by the employee to obtain medical attention, services from a victim services organization, or legal services in a civil or criminal proceeding related to the domestic violence sexual assault or stalking

Employees may take earned sick and safe leave in the smallest increment that an employer's payroll system uses to account for absences or work time, however, an employee may not be required to take earned sick and safe leave in an increment of more than four (4) hours.

Who is a “Family Member” for Purposes of Using Sick and Safe Leave? 

The law defines “family member” broadly to include twelve categories of individuals:

• a biological child, adopted child, foster child, or stepchild of the employee
• a child for whom the employee has legal or physical custody or guardianship 
• a child for whom the employee is the primary caregiver;
• a biological parent, adoptive parent, foster parent, or stepparent of the employee or the employee's spouse
•  the legal guardian of the employee
• an individual who served as the primary caregiver of the employee when the employee was a minor
• the spouse of the employee
• a grandparent of the employee
• the spouse of a grandparent of the employee 
• a grandchild of the employee
• a biological, adopted, or foster sibling of the employee
• the spouse of a biological, adopted, or foster sibling of the employee

What Notice Must an Employee Give Before Using Leave? 

An employee must request leave as soon as practicable after the employee determines that the employee needs to take leave and let the employer know the anticipated duration of the leave.  The employee must also comply with any employer policies governing leave.

Employers are prohibited from requiring an employee who requests leave under the law:

• to search to find an individual to take the employee's place while the employee takes leave

• to disclose specific details of the mental or physical illness, injury, or condition of the employee or the employee's family member

• to provide any information that would violate the Social Security Act or HIPAA. 

The restriction on obtaining specific information about the illness, injury or condition of the employee or family member is a significant change from current law and employer policies or practices that require such information will need to be modified.   Employers covered by the federal Family and Medical Leave Act, however, will be able to continue requesting such information when in compliance with that law.

Can Employers Require a Health Care Provider’s Note? 

An employer may require an employee who uses more than three consecutive days of earned sick and safe leave to provide reasonable documentation to verify that the leave was used appropriately.  The law does not address existing employer policies that require documentation for shorter absences, but the implication is that such a requirement is not permitted.  The law also does not address how frequently documentation can be required if the absence continues. 

How Leave Accrues/ Carry Over/Payment on Termination. 

Employers may award earned sick and safe leave either as the leave accrues during the calendar year, or may award the full amount that an employee would earn over the entire calendar year at the beginning of a calendar year.  Unless an employer awards the full amount of leave that the employee would earn over the entire calendar year at the beginning of a calendar year, the employee must be permitted to carry 56 hours of the balance of any unused earned sick and safe leave over to the next calendar year.  Employers may restrict an employee’s use of accrued sick and safe leave to 80 hours per calendar year.

Employers must allow employees to earn sick and safe leave during an initial 90-day probationary period, but may prohibit employees from using earned sick and safe leave during the probationary period.

If an employee is allowed to use earned sick and safe leave before the leave accrues, or receives the full amount of earned sick and safe leave at the beginning of the year and uses more than would have been earned up to that time, the employer may deduct the amount paid for the earned sick and safe leave from the wages paid to the employee upon termination of employment if the employee consents to the deduction in a document signed by the employee. 

If an employee is rehired by the employer to work in Montgomery County within nine months after leaving employment, the employer must reinstate any unused earned sick and safe leave that the employee had accrued at the time the employee’s employment ended, unless the employee voluntarily leaves work without “good cause” as defined in the unemployment law. 

Employers are not required to pay unused sick and safe leave to employees upon termination.   If an employer decides not to pay out sick and safe leave, it should say so in its written policies. 

What Notices/Information Must Employers Provide?  

Employers must provide employees with a written statement of available earned sick and safe leave each time wages are paid.  This can be accomplished by providing the information with the employee’s pay statement, or through an online system where the employee can access their own earned sick and safe leave balances.

Employers must also provide a notice of general rights under the law, including how leave is accrued, the permitted uses of leave, a statement of non-retaliation and information about how to file a complaint for violation of the law.  The County’s Office of Human Rights has published a model notice that can be used for this purpose.  The notice can be displayed with other employee legal notices in a conspicuous area at each work location.  Alternatively, the notice can be distributed to each employee at hiring, or included in the employer’s policy handbook or other compilation of policies.  If one of those methods is used, it is advisable to have the employee sign a receipt for the policy or handbook.

What Records Are Employers Required to Keep? 

Employers must keep records showing how much sick and safe leave was earned and used by each employee.  The records must be maintained for at least three (3) years and be available for inspection by the County’s Office of Human Rights. 

How Can Employees Enforce the Law/Penalties? 

Employees may file a complaint for violation of the law with the County Office of Human Rights.  The procedure for processing the complaint is the same as for discrimination complaints.  Employees can seek lost wages, compensatory damages and reasonable attorney’s fees.

When is the Sick and Safe Leave Act Effective? 

The law becomes effective on October 1, 2016. 

What Should Montgomery County Employers Do? 

All County employers should:
• review their current leave policies to determine whether the polices comply with the Sick and Safe Leave Law and make any necessary changes;
• determine how the employer will give notice of the new law to its employees;
• determine how the employer is going to provide employees with notice of their sick and safe leave balances;
• educate human resources staff and supervisors about the new law’s requirements.

If you have questions about the Montgomery County Sick and Safe Leave Law, or need assistance reviewing or drafting policy to comply with the law, please contact:

Chuck Bacharach (410-576-4169) or Bob Kellner (410-576-4239).