Maryland Healthy Working Families Act Frequently Asked Questions (FAQs)

These FAQs are preliminary responses to questions about the Maryland Healthy Working Families Act and may be subject to change. Please note that the department cannot provide legal advice regarding specific employer leave policies or employee exemptions under the law. These FAQs are for informational purposes and are intended to provide general guidance to employers and employees about the requirements of the law. If you have questions or comments about these FAQs please e-mail: ssl.assistance@maryland.gov.

I. Applicability and Eligibility

1. When does an employer have to start complying with the Maryland Healthy Working Families Act?
Employers must begin complying with the Maryland Healthy Working Families Act on February 11, 2018.

2. Why does the law say that it became effective on January 1, 2018 but your guidance says that it became effective on February 11, 2018?
*NEW* House Bill 1, the Maryland Healthy Working Families Act, was introduced during the 2017 session of the Maryland General Assembly. As drafted, the bill provided that the law became effective January 1, 2018. The General Assembly voted to pass the bill but the Governor vetoed it. When the General Assembly came back into session in January of 2018, it voted to override the Governor’s veto. The law became effective 30 days after the General Assembly voted to override the veto.

3. Which employers are required to provide earned sick and safe leave?
All employers with employees whose primary work location is in Maryland are required to provide earned sick and safe leave, regardless of where the employer is located. Employers who employ 15 or more employees are required to provide paid earned safe and sick leave. Employers with 14 or fewer employees are required to provide unpaid earned sick and safe leave.

4. Who is entitled to accrue earned sick and safe leave?
All employees whose primary work location is in Maryland are entitled to accrue sick and safe leave unless they are exempt from coverage under the law.

5. How does leave accrue?
Leave accrues at the rate of one hour for every thirty hours that an employee works. An employee is not entitled to accrue sick and safe leave during (1) a 2 week pay period in which the employee worked fewer than 24 total hours; (2) 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 (3) a pay period in which the employee is paid twice per month and worked fewer than 26 hours in the pay period. The leave hours provided for under the law are the minimum number of hours an employee is entitled to earn and accrue. An employer may provide more leave for its employees.

6. What is the maximum amount of leave that an employee can accrue and carry over?
An employee is entitled to accrue 40 hours of sick and safe leave in a year regardless of the number of hours worked. An employee is entitled to carry over up to 40 hours of earned but unused sick and safe leave from one year to the next unless it would provide the employee with more than 64 hours of total accrued leave. Additionally, if the employer awards employees the full amount of sick and safe leave at the beginning of the year, the employer may elect to not allow the carryover of unused leave.

7. Are any employees exempt from accruing earned sick and safe leave?
The following types of employees are exempt from the requirements of the law:

1. Employees who regularly work less than 12 hours a week;
2. Certain independent contractors;
3. Certain associate real estate brokers and real estate salespersons;
4. Individuals who are younger than 18 years of age before the beginning of the year;
5. Individuals employed in the agricultural sector in certain agricultural operations as defined in §5-403 of the Courts and Judicial Proceedings Article of the Maryland Annotated Code;
6. Certain construction workers covered by a collective bargaining agreement;
7. Certain employees working on an as-needed basis in a health or human service industry; and,
8. Certain employees of a temporary services agency.
   

11. Is there a suggested method to determine the number of hours earned per employee?
The employer may use any method provided the employer complies with the law. Below is a chart of hypothetical employee hours worked and the number of paid sick leave hours that would accrue in that same time period. Hypothetical Employee Accrual Chart

1. To care for or treat the employee’s mental or physical illness, injury or condition;
2. To obtain preventative medical care for the employee or the employee’s family member;
3. To care for a family member with a mental or physical illness, injury or condition;
4. For maternity or paternity leave; or
5. For an absence due to domestic violence, sexual assault, or stalking committed against the employee or the employee’s family member under certain circumstances.

V. Employer Verification of Sick and Safe Leave Use

1. When can an employer require verification of an employee’s use of earned sick and safe leave?
An employer may require verification for use of earned sick and safe leave if the employee (1) used sick and safe leave for more than two consecutive scheduled shifts or (2) the employee used the leave during the period between the first 107 and 120 calendar days of employment and the employee and employer agreed to the verification at the time of hire. An employee is required to provide reasonable advance notice of leave use if foreseeable. If the need to use leave is not foreseeable, then the employee must provide notice as soon as practicable. An employer is permitted to deny a request to take earned sick and safe leave if the employee fails to provide notice and the employee’s absence will cause a disruption to the employer.

2. Is an employee required to give notice before using earned sick and safe leave? Can an employer deny a request to use earned sick and safe leave?
*NEW* If an employee’s need to use sick and safe leave is foreseeable, the employer may require that the employee provide reasonable advance notice of not more than 7 days before the date the employee intends to use the leave. If the need to use leave is not foreseeable, the employee must provide notice as soon as practicable. An employer may deny a request to use earned sick and safe leave if the employee failed to provide notice and the employee’s absence will cause a disruption to the employer.

3. What happens if an employee uses earned leave between the first 107 and 120 calendar days of employment, the employer requests verification, and the employee fails to provide the requested documentation?
The law provides that an employer may require an employee to provide verification if the employee wants to use leave between the first 107 and 120 days that the employee was employed by the employer if the employee agreed at the time of hire to provide the verification under mutually agreeable terms. The law further provides that if these requirements are met and an employee refuses to provide verification, the employer may deny a subsequent request to use leave “for the same reason.” If the Commissioner received a complaint, the Commissioner would have to consider the facts of the particular case to determine whether the request to use leave was “for the same reason.”

4. If an employer has an attendance point system for situations that involve call offs and tardiness, what impact does the earned sick and safe leave law have on such a policy?
The earned sick and safe leave law provides that an employer cannot apply an absence control policy to earned sick and safe leave use if it could lead to or result in adverse action being taken against the employee. After an employee has exhausted all of the leave that he or she is entitled to use under the earned sick and safe leave law, then an employer could apply its normal attendance policies to any absences taken after the leave has been exhausted.

VI. Rehire Requirements

1. What happens to the earned sick and safe leave of an employee who separates from employment but is later rehired?
The law requires that if an employee is separated for less than 37 weeks and returns to work for the employer, the employer has to reinstate any earned but unused sick and safe leave (whether paid or unpaid).

2. For an employer who offers paid time off, how does the employer determine the portion of the paid time off that was considered sick leave versus vacation or personal leave when the employee is rehired?
If an employer rehires an employee within 37 weeks of separation, the employer could satisfy this requirement by reinstating any unused paid time off that the employee had available at the time of separation, assuming the amount of paid time off is equivalent to or greater than the amount of leave the employee would otherwise have been entitled to under the Act unless the employer had already paid the employee for all earned but unused leave at the time of separation.

VII. Specific Categories of Employees

1. How does an employer provide earned sick and safe leave for commission-only employees who are not normally eligible for any paid time off?
Commission-only employees are not exempt from the earned sick and safe leave law. The law provides that an employer does not need to modify an existing paid leave policy if it does not reduce an employee’s compensation for an absence due to earned sick or safe leave. If an employee would not incur any loss of pay as a result of absences for reasons permitted under the law and they are permitted to use earned sick and safe leave for the reasons set forth in the law, an employer may not need to modify its policy. However, an employer may want to consult with a legal or financial advisor to ensure that the employer has adequate documentation to demonstrate that a commission-only employee was provided earned safe and sick leave that was equivalent to or greater than that required under the law and did not incur a reduction in pay. Alternatively, an employer with commission-only employees could impute an average hourly wage to each employee based on commissions earned during a fixed period of time (for example the previous six months) and pay the employee at that rate for absences due to sick and safe leave use.

2. If a restaurant does not have set shifts and employees are sent home when business slows down how does it determine the number of hours to pay someone who takes leave when they don't have fixed working hours?
If a restaurant employee requests to take earned sick and safe leave and does not wish to work an equivalent shift in the same or the following pay period, the employer must pay the employee the current minimum wage for the hours that the employee seeks to use earned sick and safe leave. If the restaurant employer does not have regular shifts and sends employees home when work is slow, the Department suggests that the employer consult with an advisor and develop a reasonable policy for tipped employees who wish to use earned and accrued sick and safe leave during a regularly scheduled shift. For example, the employer could promulgate a policy whereby it will consider the average number of hours worked by the employee for each shift in the preceding pay period. Thus, an employee would be entitled to use the average number of hours per shift that the employee worked in the preceding pay period, assuming the employee has accrued a sufficient number of sick and safe leave hours. The Department suggests that such a policy be in writing and clearly communicated to employees.

Maryland Department of Labor
1100 North Eutaw Street, Baltimore, MD 21201
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