Montgomery County Passes Earned Sick and Safe Leave Act

Do you have employees working in Montgomery County, Maryland? If so, make sure you’re ready for the county’s new sick leave law, the Earned Sick and Safe Leave Bill (“the Act”), which takes effect October 1, 2016.

The Act requires covered employers to give eligible employees time off for a number of health and safety-related reasons. Specifically, leave is available under the Act when an employee needs to miss work:

1. To care for a mental or physical illness, injury, or condition of the employee or a family member;
2. To obtain preventative medical care for the employee or a family member;
3. Because the government has closed the employer’s place of business due to a public health emergency;
4. Because the government has closed the school or child care center of an employee’s family member due to a public health emergency;
5. To care for a family member when a health care provider determines that the family member should be isolated from the community; or
6. To seek medical attention, services from a victim services organization, or legal services, or to participate in legal proceedings, when the employee or a family member has been a victim of domestic violence, sexual assault, or stalking.

Earned Sick and Safe Leave Act Coverage

All employers with at least one employee working in Montgomery County are covered by the Act (whether or not the employer is actually located in the county). Generally, all full-time employees and all part-time employees who work at least eight hours per week are eligible to earn and use leave provided by the Act. Employees who regularly work fewer than eight hours per week and independent contractors are not covered.

Leave Accrual

Leave begins to accrue the day an eligible employee starts working, although employers may require each new employee to wait 90 days from his or her start date before using leave. The employee typically accrues one hour of leave for every 30 hours worked, up to a maximum that depends on the size of the employer:

(a) Up to 56 hours of paid leave per year if the employer has five or more employees;

(b) Up to 32 hours of paid leave per year, plus an additional 24 hours of unpaid leave, if the employer has fewer than five employees.

Instead of having employees accrue leave gradually, from week to week, an employer may give them the full annual leave amount in a lump sum at the start of the calendar year. With this option, the employee forfeits any accrued, unused leave that remains at the end of the year. Under the accrual method, on the other hand, at the end of the year each employee may carry up to 56 unused leave hours over to the following year. Employees are not entitled under the Act to use more than 80 hours of leave in any calendar year, and an employee may accumulate no more than 112 leave hours over two years.

Payment upon Termination

The Earned Sick and Safe Leave Act does not require employers to pay employees for any unused leave when employment ends. Under existing Maryland law, employers are free to decide whether to pay departing employees for any unused leave or paid time off, provided such policies are in writing.

Leave “Overdrafts”

Under the Earned Sick and Safe Leave Act an employer may, but is not required to, allow an employee to use more leave than the employee has accrued. If employment ends before the employee accrues sufficient leave to “pay back” any overdraft, the employer may deduct from the employee’s final wages the value of such “unearned” leave. However, the employer must have the employee’s written consent to such an offset.

Notice and Record-Keeping

Employers are required to notify their employees of the availability of leave under the Act, and must retain records of the accrual and use of leave for three years.

Retaliation

The Act prohibits employers from retaliating against employees who use leave provided under the Act, and establishes penalties for employer violations.

Overlap with General Paid Time Off Policies

Employers may adopt broader paid time off policies that allow employees to take leave for vacation as well as for the purposes identified by the Act. To satisfy the Act such policies must conform with the terms of the Act and paid time off provided under those policies must satisfy the requirements for leave provided for by the Act.

Planning for the Earned Sick and Safe Leave Act

If you have at least one employee in Montgomery County, Maryland, you must adopt, or ensure you already have, leave and related policies that comply with the Earned Sick and Safe Leave Act for all employees working in the county. You also need to make arrangements to notify your Montgomery County employees of the Act and its requirements. If you have questions about the foregoing, or any other questions about employment and labor law, please contact Randall K. Bowen at (703) 535-5398.