Employer FAQs regarding Montgomery County’s “Earned Sick and Safe Leave”

Author: A. Howard Metro Date: 11/28/2016

Categories: Corporate and Business Law, Employment Law & Litigation

Are you an employer? Do you conduct business in Montgomery County or do your employees perform services there? Are any of these employees excluded from your company’s leave policies? If so, a new Montgomery County law means that you likely have to change your practices.

Montgomery County enacted a new “Earned Sick and Safe Leave Law” (the “County Law”), which became effective on October 1, 2016. This article is part of a series intended to clear up many questions regarding the County Law.

The federal Family Medical Leave Act (FMLA) and Maryland’s Parental Leave Act provide leave, under certain conditions, to employees. However, these laws do not cover the smallest employers. This means that there is a category of small companies that are not covered by either state or federal leave laws. The County Law was created, in part, to fill this gap and ensure that employees for even the smallest employers are guaranteed leave time for important sickness and safety reasons.

1) How does the County Law define “earned sick and safe leave”? The County Law defines “earned sick and safe leave” as leave that employees may use under limited circumstances listed below (“County Leave”). Whether and when an employer must pay an employee for the County Leave that he uses depends on several circumstances that we explain in our series.

2) When can employees use County Leave? The employer must provide and authorize County Leave for any employee: to tend to his/her own, or a family member’s, physical or mental health needs or conditions; due to closure of the employee’s work, or his/her children’s school or child care center, due to a public health emergency; to care for a family member with a communicable disease; to address issues related to domestic violence, sexual assault, or stalking against the employee or his/her family member(s); and, for the birth of a newborn or placement of an adopted or foster child, or to care for a newborn or a placed child, within one year of such event.

3) Does the County Law only apply to Montgomery County? Yes, the County Law applies only to Montgomery County employers whose work is performed in Montgomery County. To be clear, County Leave is available only to employees who are working or instructed to be present in Montgomery County. Most of our clients have told us that, given the administrative burden of doing otherwise, they want to treat all employees the same, regardless of their locale.

4) Does the County Law require employers who already offer sufficient PTO to give their employees more? No. So long as an employer grants at least 56 hours (or seven (7) days) of PTO to employees covered by the law, then they do not need to offer any additional County Leave. In practice, this means that each time an employee takes a day of PTO, for example, his or her balance of County Leave will be reduced.

5) How does the County Law affect existing employment policies? Very little, if an employer’s leave policies already comply with the County Law as described in Question 3. At a minimum, these employers must ensure their employees know that up to a total of 56 hours (or 7 days) of granted PTO is guaranteed for the purpose of County Leave. These employers must also notify employees of their County Leave balance on each paycheck and post a model notice from the Montgomery County Office of Human Rights. Employers should also amend their employee handbooks or manuals to make sure that there is a statement about the County Leave, as described below.

6) How does the County Law work? Employers can either award County Leave, in full, at the beginning of the year, or let it accrue throughout the year. This choice has important consequences. If the award is up-front, then an employer need not award any carry-over. If the award is by accrual, then an employer must allow employees to carry over up to fifty-six (56) hours to the next year. Thus, there may be an incentive for an employer to grant an up-front award.

7) How is County Leave earned? The rate of accrual for County Leave is one (1) hour per every thirty (30) worked, regardless of whether County Leave is awarded up-front or accrued. This highlights an important point about the County Law that is initially confusing to many clients. The County Law guarantees that workers can take time off for sickness and safety, but it does not mandate that the employee be paid at the same time. Payment may come later, as it is earned. For example, if an employer awards County Leave at the beginning of the year, the employee may take the time off work, but she will not be paid for that time unless and until she earns it. An employer must obtain written employee consent to use this practice.

8) What else do employers have to tell employees about the County Law? Employers must notify employees that they are entitled to County Leave and inform them of how it is accrued, its permitted uses, the prohibition on employer retaliation, and how to file a complaint with the Office of Human Rights. The notice must be in English, Spanish and other necessary languages. It may either be prominently displayed in the workplace or included in the employer’s handbook for employees. The Office of Human Rights supplies a model notice, which you can access here.

9) Are there any restrictions on employers? Yes. Employers cannot require that employees find substitutes to fill-in during their absences while they use County Leave. Employers also may not require employees to disclose specific details about their medical conditions or provide statutorily-protected private information.

10) When did leave start to accrue? The law went into effect October 1, 2016, which means that 1/6th of the year will have passed by December 31, and employees covered under the County Law shall have accrued eight (8) hours (or 1 day) of leave by then. Thus, an employer who does not grant any leave or other paid-time-off benefits must permit eight (8) hours (or 1 day) of County Leave on October 1 to a covered employee. This is also relevant for employers who begin their leave accruals on the calendar year.

11) Are there any employees not affected by the County Law? Yes. Employees not covered under the County Law are independent contractors (who are not, by law, “employees” anyway), employees who regularly work 8 hours or less each week, and irregular workers who have no obligation to an employer unless they contact the employer for a work assignment.

If you still have unanswered questions, stay tuned for our highlight next month! Of course, you are always welcome to contact us at any time to discuss these issues and help you navigate the muddy waters surrounding “earned sick and safe leave.”