Yesterday, the Maryland General Assembly passed the Maryland Healthy Working Families Act (“HWFA”).
The HWFA requires employers with 15 or more workers to provide paid sick leave to employees who work at least 12 hours per week. Employers with 14 or fewer employees are required to provide unpaid leave for employees who work at least 12 hours per week.
The number of employees is determined by calculating the average monthly number of employees employed during the immediately preceding year. All employees are included in the calculation regardless of whether they are full-time, part-time, temporary, seasonal or even eligible for earned leave under the HWFA.
The law carves out an exception for employees in the construction industry covered by a collective bargaining agreement in which the requirements of this law are expressly waived in clear and unambiguous terms. However, janitors, building cleaners, building security officers, concierges, doorpersons, handypersons and building superintendents are not included in the exception. Also excluded from the law are employees called to work on an “as-needed” basis in a health or human services industry who can reject or accept the shift offered by their employer and are not guaranteed to be called on to work.
State or local government employees who enjoy sick leave benefits equivalent to, or better than, the HWFA, are subject to their existing laws and policies regarding accrual and use of sick leave, grievances and disciplinary actions.
Under the HWFA, earned leave accrues at a rate of at least one hour for every 30 hours an employee works.
Employers are not required to allow employees to:
- earn more than 40 hours of earned leave in a year;
- use more than 64 hours of earned leave in a year;
- accrue a total of more than 64 hours at any time; or
- use earned leave during the first 106 calendar days.
Also, employers are not required to allow employees to accrue earned leave during:
- a 2-week pay period in which the employee worked fewer than 24 hours total;
- a 1-week pay period if the employee worked fewer than a combined total of 24 hours in the current and immediately preceding pay period; or
- a pay period in which the employee is paid twice a month regardless of the number of weeks in a pay period, and the employee worked fewer than 26 hours in the pay period.
HWFA leave can be used for the following purposes:
- to care for or treat a mental or physical illness, injury or condition of the employee or the employee’s family member;
- to obtain preventative care for the employee or the employee’s family member;
- for maternity or paternity leave;
- to obtain medical, victim support and legal services related to domestic violence, sexual assault or stalking for the employee or the employee’s family member.
EMPLOYEES’ OBLIGATIONS REGARDING NOTIFYING THE EMPLOYER OF HWFA LEAVE
If the need to use leave is foreseeable, an employer may require employees to provide reasonable advance notice of not more than seven days before the leave would begin.
If the need to use leave is not foreseeable, employees must provide notice as soon as practicable and generally comply with their employer’s notice or procedural requirements for requesting or reporting other leave, if those requirements do not interfere with employees’ ability to use HWFA leave.
Employers may require employees to provide verification that HWFA leave taken was used appropriately.
EMPLOYER DENIALS OF REQUESTS FOR HWFA LEAVE
Employers may deny requests for HWFA leave if the employee fails to provide notice and the absence will cause a disruption to the employer.
A private employer licensed to provide services to developmentally disabled or mentally ill individuals may deny request for HWFA leave if the need was foreseeable and, after exercising reasonable efforts, the employer is unable to provide a suitable replacement employee, and the absence will cause a disruption of service to at least one individual with a developmental disability or mental illness.
ALTERNATIVE ARRANGEMENTS UNDER THE HWFA
Employers may not require that employees requesting HWFA leave search for or find a replacement employee.
Instead of taking HWFA leave, and with the employer’s consent, employees may work additional hours or trade shifts with another employee to make up hours. However, employees are not required to make such an offer or accept such an offer.
The HWFA provides special rules for tipped restaurant industry employees.
EMPLOYERS’ OBLIGATIONS UNDER THE HWFA
Employers are required to provide statements regarding the amount of HWFA leave available for use by their employees and are required to notify their employees regarding all of their rights under the HWFA.
Employers must keep records of HWFA leave accrued and used by employees for at least 3 years.
An employee who believes that their employer has violated the HWFA may file a complaint with the Commissioner of Labor and Industry. Within 90 days after the receipt of a written complaint, the Commissioner shall conduct an investigation and attempt to resolve the issue informally through mediation.
If the Commissioner is unable to resolve an issue through mediation and determines that an employer has violated the HWFA, the Commissioner shall issue an order describing the violation and directing the payment of the full monetary value of any unpaid HWFA leave and any actual economic damages.
The order may, in the Commissioner’s discretion, direct the payment of an additional amount up to three times the value of the employee’s hourly wage for each violation; and may, in the Commissioner’s discretion, assess a civil penalty of up to $1,000 for each employee for whom the employer is not in compliance with the HWFA.
Within 30 days after the Commissioner issues an order, an employer shall comply with the order. If an employer does not comply with an order within 30 days, the Commissioner may, with the written consent of the employee, ask the attorney general to bring an action on behalf of the employee in the county where the employer is located; or bring an action to enforce the order for the civil penalty in the county where the employer is located; and within 3 years after the date of the order, an employee may bring a civil action to enforce the order in the county where the employer is located.
If an employee prevails in an action to enforce an order, the court may award three times the value of the employee’s unpaid earned sick and safe leave; punitive damages in an amount to be determined by the court; reasonable counsel fees and other costs; injunctive relief, if appropriate; and any other relief that the court deems appropriate.
The law provides, generally, that a “person” may not interfere with the exercise of or the attempt to exercise any right given under the HWFA, but also provides specifically, that an employer may not take adverse action or discriminate against an employee because the employee exercises in good faith the rights protected under the HWFA. Nor may an employer interfere with, restrain, or deny the exercise by an employee of any right provided for under the HWFA, or apply an absence control policy that includes HWFA leave absences as an absence that may lead to or result in an adverse action being taken against an employee.
These protections apply to an employee who mistakenly, but in good faith, alleges a violation of the HWFA.
EMPLOYEES’ GOOD FAITH REQUIREMENT
Accordingly, an employee may not in bad faith:
- file a complaint with the commissioner alleging a violation of the HWFA;
- bring an action under the HWFA; or
- testify in an action under the HWFA.
An employee who does so is guilty of a misdemeanor and on conviction is subject to a fine not exceeding $1,000.
If you have any questions or concerns about the Maryland Healthy Working Families Act, please do not hesitate to contact the experienced employment lawyers at Luchansky Millman.