ARTICLE DETAIL

May 31, 2017

Governor Vetoes Maryland’s Paid Sick Leave Bill But Override Likely in Next Session

By:  David Burkhouse, Esquire                                 

GOVERNOR VETOES MARYLAND’S PAID SICK LEAVE BILL BUT OVERRIDE LIKELY IN NEXT SESSION

After several attempts at passage in previous legislative sessions, the Maryland General Assembly passed the Maryland Healthy Working Families Act (HB1 (SB230)). The bill was to take effect on January 1, 2018. However, on May 25, 2017, Governor Larry Hogan vetoed the bill having previously called it “a deeply flawed, job-killing paid leave bill,” that would “cost thousands of jobs and billions of dollars in lost economic activity.” Although the Governor’s veto halts implementation of the bill for the moment, override of the Governor’s veto is likely in the coming legislative session given the fact that a sufficient number of votes to override the veto existed both in the General Assembly and the Senate at the time of the bill’s passage. Further, House Speaker Michael Busch has already indicated that overriding the Governor’s veto will be a priority in January.

The Maryland Healthy Working Families Act would require an employer with more than 14 employees to have a sick and safe leave policy under which an employee earns at least 1 hour of paid sick and safe leave for every 30 hours an employee works. An employer with 14 or fewer employees, based on the average monthly number of employees during the preceding year, would be required to have a sick and safe leave policy that provides an employee with at least 1 hour of unpaid sick and safe leave for every 30 hours an employee works. An employer would not be required to allow an employee to earn more than 40 hours of earned sick and safe leave in a year, use more than 64 hours of earned leave in a year, accrue more than 64 hours at any time, or use earned sick and safe leave during the first 106 calendar days worked.

The bill defines the term “employer” to include the State or local governments and a person who acts directly or indirectly in the interest of another employer with an employee. The bill also excludes certain specific classes of employees from eligibility.

Earned sick and safe leave would begin to accrue the later of January 1, 2018, or the date that an employee begins employment with the employer. An employer would have to allow an employee to 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 employee’s family member;
  • to care for a family member with a mental or physical illness, injury, or condition;
  • for maternity or paternity leave; and
  • for specified circumstances due to domestic violence, sexual assault, or stalking committed against the employee or the employee’s family member.

The bill includes processes and conditions, including notice and verification requirements, under which an employee may accrue and use earned leave.

An employer would have to notify its employees that they are entitled to earned sick and safe leave by providing a specified notice to employees. The Commissioner of Labor and Industry (the “Commissioner”) would have to create and make available a poster and a model notice that may be used by employers, which would include specified information on earned sick and safe leave and the rights of employees.

As to enforcement of the bill’s provisions, the bill would preempt the authority of local jurisdictions to enact a law on or after January 1, 2017, that regulates sick and safe leave provided by an employer other than the local jurisdiction.

As to further provisions of an enforcement nature:

  • An employer would have to keep relevant records for at least three years, and the Commissioner may inspect an employer’s records regarding earned sick and safe leave. Furthermore, it would be presumed that an employer has violated the earned sick and safe leave provisions if the employer fails to either keep records or allow the Commissioner to inspect records.
  • If an employee believed that an employer had violated a provision of the bill, the employee would be able to file a written complaint with the Commissioner. The Commissioner would investigate the complaint and attempt to resolve the issue informally through mediation within 90 days of the written complaint.

o   If the Commissioner were unable to resolve the issue through mediation and determined that an employer had violated a provision of the bill, the Commissioner would issue an order, subject to the hearing and notice requirements of the Administrative Procedure Act. The order would describe the violation and direct the payment of the full monetary value of any unpaid earned sick and safe leave and any actual economic damages. The order would, in the Commissioner’s discretion, direct the payment of an additional amount of up to three times the value of the employee’s hourly wage for each violation and assess a civil penalty of up to $1,000 for each employee for whom the employer is not in compliance with provisions of the bill.

o   If an employer failed to comply with an order within 30 days of its issuance, the Commissioner would be able to request that the Attorney General bring an action – either on behalf of the employee (with the employee’s written consent) or to enforce the order for the civil penalty – in the county where the employer is located.

o   In addition, within three years of the order, an employee would be able to bring a civil action to enforce the order in the county where the employer is located. If an employee prevailed in such an action, the court would have the discretion to award up to three times the value of the employee’s unpaid earned sick and safe leave, punitive damages in an amount determined by the court, reasonable legal fees, injunctive relief if appropriate, and any other appropriate relief.

  • A person would not be able to interfere with the exercise of, or the attempt to exercise, any right given under the bill.
  • An employer would not be allowed to take any adverse action or discriminate against the employee because the employee exercised in good faith the rights granted by the bill.
  • An employer would not be able to interfere with, restrain, or deny an employee exercising rights provided under the bill or apply a specified absence control policy that could lead to adverse action.
  • An employee who mistakenly, but in good faith, alleges a violation under the bill would be protected.
  • However, under the bill, an employee found to have filed a complaint with the Commissioner alleging a violation, brought an action, or testified in an action regarding earned sick and safe leave in bad faith would be guilty of a misdemeanor and on conviction is subject to a maximum $1,000 fine.

Other laws which may impact sick leave in Maryland are Federal Family and Medical Leave Act of 1993, Maryland Flexible Leave Act, and the Maryland Parental Leave Act.

Mr. Burkhouse is a Member with PK Law and is part of the firm’s Education, Labor and Employment Group. As part of Mr. Burkhouse’s employment law practice he counsels and represents employers regarding employment discrimination claims arising under Title VII of the Civil Rights Act of 1964 and the Age Discrimination in Employment Act of 1967. Mr. Burkhouse also advises employers with regard to non-compete agreements, restrictive covenants, arbitration agreements, trade secrets, confidentiality agreements, and employee hiring and termination procedures.  Mr. Burkhouse can be reached at(410) 740-3150 or dburkhouse@pklaw.com.