The Earned Sick and Safe Leave Law

Montgomery County, Maryland (the “County”), has recently joined the growing list of jurisdictions requiring paid sick leave for employees. According to County legislators, paid sick and safe leave is necessary to promote the health and welfare of County residents and safeguard County employers from unfair competition from neighboring jurisdictions. Effective October 1, 2016, entities doing business in the County must be in full compliance with the Earned Sick and Safe Leave Law (“Paid Leave Law”) which is explained in more detail below.

Applicability of The Paid Leave Law

The Paid Leave Law is applicable to all employers doing business in the County. It requires employers to provide paid leave for any employee who regularly works more than eight hours per week. The Paid Leave Law also extends paid leave to tipped employees, defined as any employee who customarily and regularly received more than $30.00 each month in tips and has kept all of the tips received.

Excluded from coverage under the Paid Leave Law are independent contractors, temporary agency workers and individuals who do not have a regular work schedule.

How Much Paid Leave Is Required And How Does It Accrue?

Employers with five or more employees are required to provide employees with paid leave accruing at a rate of not less than one hour of leave for every 30 hours the employee works. For employers of this size, leave is capped at 56 hours of paid leave in a calendar year.

Employers with fewer than five employees must provide 32 hours of paid leave and an additional 24 hours of unpaid leave per calendar year, using the same rate of accrual of one hour of leave for every 30 hours worked.

There is no “probationary period” under the Paid Leave Law. Paid leave begins to accrue immediately. However, employers may restrict an employee from actually using earned paid sick leave during an initial 90-day probationary period.

For employees who are exempt from overtime under the federal Fair Labor Standards Act, employers must assume that the employee works a normal 40-hour work week when calculating the accrual of paid leave.

The Paid Leave Law also requires earned leave to be paid at the same hourly rate and with the same benefits as the employee normally receives. Tipped employees must be paid at least the County minimum wage of $10.75 for each hour the employee uses earned leave.

When Can An Employee Use Paid Sick Leave?

The Paid Leave Law permits employees to use the paid leave to care for or treat the employee’s own mental or physical illness, injury or condition, or those of a family member. It also allows paid leave to be used by the employee to obtain preventative medical care for the employee or a family member.

The Paid Leave Law defines “family member” broadly to include the employee’s biological, adopted, foster, step-, and grandchildren. Family member also includes the employee’s spouse, parents, grandparents and biological, adopted, or foster siblings.

Employers must also permit an employee to use paid leave in connection with an act of domestic violence, sexual assault or stalking, as defined by Maryland criminal laws, committed against the employee or the employee’s family.

Finally, employers are required to allow the use of paid leave in the event of a public health emergency that closes the employer’s place of business, or closes the school or child care center for the employee’s family member.

What Must Employees Do Before Taking Sick Leave?

To use paid leave, the Paid Leave Law requires an employee to: (1) request leave from the employer as soon as practicable; (2) notify the employer of the anticipated duration of the leave; and (3) comply with reasonable procedures established by the employer for requests to take leave. Employers may require employees who use more than three consecutive days of paid sick leave to provide reasonable documentation to verify that the leave was used appropriately.

How Must Employers Account For Paid Sick Leave?

The Paid Leave Law permits an employer to award earned sick leave as it accrues during the calendar year (one hour of paid leave for every 30 hours worked-). Alternatively, employers may award at the beginning of the calendar year the full amount of leave that the employee would earn over the coming year. Employees must be permitted to carry forward to the next calendar year any balance of unused earned sick leave. The carry forward provision does not apply, however, if the employer awards at the beginning of a calendar year the full amount of sick leave that would be earned during the next 12 months. Employers may deduct from wages paid to the employee on termination of employment for any use of paid sick leave by the employee before it was earned, or in the case of an employee who has received the full amount of paid sick leave at the beginning of the year and uses more than would have been earned up to the time of termination of employment.

Employers are not required to compensate an employee for any unused earned sick leave balance when the employee terminates employment.

Employers must keep records for each employee of all paid leave earned and used for a minimum of three years.

Required Notices To Employees

The new Paid Leave Law requires employers to provide two types of notice to employees. First, employers must notify employees of their entitlement to paid leave by giving written notice that includes:

• how paid sick leave is accrued;
• when earned sick leave can be used;
• a statement that it is unlawful for employers to retaliate against employees for using paid sick leave; and
• how employees can file a complaint for any employer violation of the Law.

Employer may provide the notice by: (1) posting notice in a conspicuous and accessible area of each of employer’s work locations in the County; (2) including a notice in the employer’s employee handbook or in written guidance distributed to all employees; or (3) giving notice to each employee at the time of hiring.

In addition, Employers are required to provide employees with a written statement of available earned sick leave each time the employer pays wages. This requirement can be satisfied, however, if the employer provides employees access to an online system where an employee can access the employee’s own earned leave balance.

How Is The Law Enforced?

Enforcement of the Paid Leave Law is through the County Office of Human Rights (“OHR”) and the Human Rights Commission. A covered employee alleging a violation of the Paid Leave Law is permitted to file a complaint with the Director of OHR for investigation and possible administrative adjudication. In the event of a violation, the OHR is empowered to order the employer to pay damages (other than punitive damages), equitable relief, and any other relief that “furthers the purposes” of the Paid Leave Law.

The Take Away

The new Montgomery County paid leave statute is comprehensive. It represents a significant change in the existing leave law for County employers. Many employers will need to make adjustments to their existing leave policies in order to come into compliance with the Paid Leave Law. Even those employers with leave policies that are already in compliance with the paid leave provisions will still need to account for some of the Paid Leave Law’s record keeping and employee notice requirements.