Friday, March 24, 2017

New Update Maryland Employment Legislation

It ain’t over till it’s over…


Arguably the most active – and – fought over, piece of legislation this year in Maryland is HB0001/SB0230 – Maryland Healthy Working Families Act. Here’s where we stand today:

This sick and safe leave bill passed both a full House of Delegates and Senate vote; it is currently working its way back to the House for a first round to attempt reconciliation of the now two versions of the bill. The Senate passed several amendments (last year it did not get out of the Senate Finance Committee). Ten amendments were offered in the House and all but one was rejected. Current Senate amendments provide that businesses with 15 or more employees are covered but would apply to employees working at least 12 hours per week; requires accrual of leave at the rate of 1 hour of paid leave for every 30 hours worked, up to 40 hours per year. This bill has several other very proscriptive provisions on how, when and under what circumstances leave can be accrued used or denied. It does also include a pre-emption for future local jurisdiction laws. The preemption clause along could sink any reconciliation.
As a reminder, and with the changes made by the Maryland Senate, here are some of the many provisions of this bill:

  • Applies to businesses with 15 or more employees. (Businesses with fewer than 15 employees must provide unpaid sick and safe leave, and therefore must track how much unpaid leave these employees use.)
  • Applies to employees working at least 12 hours per week, or 24 within a two-week pay period.
  • Provides 1 hour of sick and safe leave for every 30 hours worked.
  • Allows an earnings cap of 40 hours per year and usage and accrual caps of 72 hours per year.
  • Allows a waiting period for use of leave for the first 106 calendar days of employment. (This was a small concession to exclude "seasonal" employees as eligible for paid leave.)
  • Requires carryover of accrued leave up to 40 hours year to year. Carryover is not required if all leave is granted in a lump sum at the beginning of the year.
  • Allows "borrowing" of time before earned/accrued.
  • Requires reinstatement of unused leave if a separated employee returns within 37 weeks of leaving (unless unused leave was paid out upon termination).
  • Requires allowing use of leave for non-illness –related reasons.
  • Includes grandparents, siblings, etc., in definition of "immediate family".
  • Only allows verification/justification of leave if used for more than 2 consecutive shifts.
  • Changes "presumptive violation" to "rebuttable presumptive violation". Small consolation. Before the bill required the assumption the business was in violation of the law from even a small, obviously unintentional recordkeeping error. So, now, the bills allows the business to "rebut" that presumption. And, the penalties are higher than any other employment regulation penalties in the state.

Meantime, the Governor’s paid leave bill sits in committee with absolutely no action. 

Not surprisingly, Governor Hogan has proclaimed this bill "dead on arrival". The question now is whether or not enough votes are available for an override of that veto should we come to that.

If any version of this bill passes, businesses will need to very carefully review all the provisions in detail in order to ensure compliance. This goes far beyond a simple paid leave law. It dictates who, how, and when leave must be earned, accrued, carried over and under what specific circumstances foreseeable leave can be denied. It is more extensive than any paid leave law in the country.

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