Last Updated: 08.19.2020

All small business owners need to be aware of the recent override of the Gubernatorial veto of the Healthy Working Family’s bill by the Maryland General Assembly.  The law went into effect this week. ENLawyer Kurt Nachtman is here to break down the bill in the simplest possible terms.  Get a calculator and scratchpad ready – ‘cause it is anything but simple.

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Small Business Lawyer Overview

Employers with more than 15 employees must provide paid earned sick and safe leave at the employee’s regular wage rate (not defined clearly). Employers with 14 or fewer employees must provide unpaid earned sick and safe leave.

Employees that are not eligible

Employees who average less than twelve hours a week or are under the age of 18 years old are not eligible for sick and safe leave. This bill also excludes independent contractors who are licensed realtors, employees in the health or human services industry who work on an as-needed basis and have the ability to reject the shift, construction workers who are a part of a collective bargaining agreement, and those employed by a temporary services agency.

How sick and safe leave is earned

Employees are entitled to begin earning sick and safe leave from the date of employment but are not eligible to use earned leave during the first 106-calendar days. Per year, employees earn 1 hour of paid safe and sick leave for every 30 hours worked until the accrued hours reach 40 hours (five 8-hour workdays). If the employee’s primary income is derived from tips, such as a server or bartender, the employer is required to pay the employee hourly minimum wage.

Up to 40 unused earned hours can be carried over into the next year, although the employee cannot use more than 64 hours of earned sick and safe leave in a year. The employer has the option to award employees the full amount of earned sick and safe leave at the beginning of the year. If an employer does this, the employer is not required to allow an employee to carry over the unused sick and safe leave at the beginning of the next year. If the leave time is foreseeable, the employer may require the employee to give up to seven days’ notice.

What constitutes “safe and sick” leave?

  • Mental or physical illness, injury, or condition of employee or employee’s family member.
  • Obtain preventative medical care for employee or employee’s family member
  • Maternity or paternity leave
  • Absence due to domestic violence, sexual assault, or stalking committed against the employee or employee’s family member (leave must be related to the incident to obtain medical or mental health attention, services from a victim services organization, or legal services).
  • Temporarily relocation due to domestic violence, sexual assault, or stalking.

Employer’s Responsibilities

Employers are not required to change their current policy if it is at least equivalent to the provisions in this bill and the policy does not reduce employee compensation for absence due to sick or safe leave. Every pay period, employers are required to provide a statement to each employee with the amount of earned sick and safe leave that is available for use. Employers are also required to keep sick and safe leave records for at least three years.

Open issues

What about commission compensated employees for employers who have 15 or more employees?  If an employee is suspected of abusing “safe and sick” leave and is terminated, does the employee have a cause of action against the employer?  Does the employer need to include the “sick and safe” leave the information on the paystub or is that a new report?

ENLawyers Bottom Line

The bill, while containing good intentions, leaves many open questions in terms of implementation and practicality.

ENLawyer Kurt Nachtman has been searching for answers, in particular with regard to commission compensated employees and what pay they are entitled to if they call out sick. So far no answers.

If you find yourself evaluating your small business policies, give our firm a call.