Although the FFCRA’s mandatory paid sick and medical leave expired on December 31, 2020, employers in the D.C.-metro region must ensure compliance with mandatory paid and unpaid leave laws on a state and local level. Currently, Virginia has no mandatory paid leave requirement, but mandatory paid and unpaid leave laws exist in Maryland, Montgomery County and D.C. This blog provides a “quick tool” you can use as a reference to your requirements if you are a Maryland employer, in or out of Montgomery County.
All Maryland employers must comply with the following leave laws: Healthy Working Families Act, Parental Leave Act and Flexible Leave Act. Employers in Montgomery County must ensure compliance with an additional leave law, the Earned Sick and Safe Leave Act. These laws mandate providing paid and unpaid leave for various reasons and, in the case of the Flexible Leave Act, situations in which employers must allow employees to use company-provided PTO.
Maryland Healthy Working Families Act (HWFA)
The HWFA requires all Maryland employers with 15 or more employees to provide paid sick and safe leave (referred to as HWFA leave in this blog) 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. Employers determine their total number of employees by calculating the average monthly number of employees employed during the immediate preceding year. All employees are included in the calculation regardless of whether they are full-time, part-time, temporary or seasonal.
One hour for every 30 hours worked capped at 40 hours annually.
Unused, earned HWFA leave is carried over to the following year, however, an employer is not required to allow an employee to carry over more than 40 hours of unused HWFA leave per year. If the employer chooses to award the full amount of leave at the beginning of the year, the employer doesn’t have to allow any unused HWFA leave to be carried over from one year to another.
Employers are not required to allow employees to use earned leave during the first 106 calendar days of employment.
Employers don’t have to allow accrual of HWFA leave when:
- An employee works less than 24 hours in a two-week pay period;
- In instances of one-week pay periods, an employee works less than 24 hours combined in the current and immediately preceding pay period;
- An employee works less than 26 hours in a pay period where the employee is paid twice a month.
Employees may use HWFA leave to:
- Care for or treat a mental or physical illness, injury or condition of the employee or the employee’s family member;
- Obtain preventative care for the employee or the employee’s family member;
- Take maternity or paternity leave;
- Obtain medical, victim support and legal services related to domestic violence, sexual assault or stalking for the employee or the employee’s family member.
- 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.
- Provide employee statements notifying employees of the amount of HWFA leave available to them, and their rights under the HWFA.
- Keep records of HWFA leave accrued and used by employees for at least three years.
Employers are not required to pay out unused HWFA leave upon termination. If an employer chooses, it may allow an employee to use HWFA leave that has not yet been accrued. If an employee’s employment terminates with a negative HWFA leave balance, the employer may only deduct the negative balance from the employee’s wages at the time of termination if both parties consented to the deduction in writing.
If a former employee is rehired within 37 weeks after leaving the employment, for any reason, then the employer is required to reinstate any unused HWFA leave that accrued at the time the employee left employment, unless that earned leave was voluntarily paid out by the employer.
Maryland Parental Leave Act (PLA)
The PLA requires all Maryland employers with between 15 and 49 employees to provide eligible employees with six weeks of unpaid parental leave benefits, during any 12-month period, for the birth, adoption or foster placement of a child.
An employee must:
- Have been employed for at least 12 months and have worked 1,250 hours prior to the start of the leave;
- Be employed at a work location in Maryland at which at least 15 employees work within a 75-mile radius in Maryland.
Coordination of PLA and FMLA
Employees eligible for leave under the PLA also may be eligible for leave under the FMLA when their Maryland worksite is within 75 miles of a work location outside of Maryland, and the FMLA threshold of 50 employees is met between the two locations. In such a case, it is likely that the employee’s PLA leave and FMLA leave for the birth or adoption of a child would run concurrently.
An employer may require the employee give at least 30 days’ notice of the need for leave. However, such notice is not required in the case of a premature birth or an unexpected adoption or placement for foster care. An employer may deny requested leave only if the denial is necessary to prevent “substantial and grievous economic injury” to its operations, provided that the employer notifies the employee of the denial before the leave begins.
Job Restoration Rights
At the conclusion of PLA leave, the employee must be restored to his or her previous position or to an equivalent position with equivalent benefits, pay, and “other terms and conditions of employment.” An employer may deny job restoration rights only if:
- The denial is necessary to prevent substantial and grievous economic injury to the operations of the employer;
- The employer notifies the employee of the intent to deny restoration at the time it determines that economic injury would occur; and
- Where the leave has already begun, the employee elects not to return to employment after receiving notice.
Maryland Flexible Leave Act (FLA)
The FLA requires Maryland employers with 15 or more employees to allow employees to use paid leave for the illness of an immediate family member. The law does not require employers to provide paid leave, only that employees be permitted to use any paid leave they have earned under their employers’ policies. The law specifies paid leave as “time away from work for which an employee receives compensation.” This includes, but is not limited to, sick leave, vacation time and compensatory time.
An employer must have “15 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year.” In other words, an employer who crosses the 15-employee threshold isn’t immediately covered. Conversely, once covered, an employer is subject to the FLA until its employee count falls below 15 employees for a significant amount of time.
Montgomery County Earned Sick and Safe Leave Act (ESSLA)
Montgomery County provides greater coverage to employees than the state. It requires employers with five or more employees to give employees 56 hours of paid leave per year, and those with fewer than five employees to give their employees 32 hours of paid leave and 24 hours of unpaid leave.
Employees may use ESSLA leave:
- To care for the employee’s mental or physical condition. .
- To care for a family member’s mental or physical condition. .
- To care for a family member who presents a risk to the community because of exposure to a communicable disease. .
- To allow the employee or a family member to obtain preventative medical care. .
- If the place of business is closed due to a public health emergency. .
- If the school or childcare center of a family member is closed due to a public health emergency. .
- To seek any medical attention, legal services or any services provided by victim’s organizations or to temporarily relocate due to domestic violence, sexual assault or stalking.
- Request leave as soon as is practicable; .
- Notify the employer of the anticipated duration of required leave; .
- Comply with all reasonable procedures the employer has established for requesting and taking leave; .
- If asked, provide the employer reasonable documentation supporting the absence if taking more than three consecutive days. .
Employers must notify employees of their entitlement to sick and safe leave in a form that includes the following:
- A statement of how leave is accrued; .
- The permitted uses of leave; .
- A statement that the employer will not retaliate against employees for using leave; .
- Information about the employee’s right to file a complaint for violations of rights granted by the legislation. .
Employers may either award leave as it accrues throughout the calendar year or grant the full amount of leave to be earned over the course of the calendar year at the beginning of the year. Employers who utilize the accrual method must permit earned unused leave to carry over from year to year, with an annual carryover cap of 56 hours. Even with carryover, employers may limit the use of paid leave (or the combination of paid/unpaid leave for small employers) to 80 hours a year.
Transfer and Reinstatement
Employees who transfer to worksites outside the county (with the same Montgomery County employer) must be permitted to use the earned and unused sick and safe leave accrued while working in Montgomery County. Employees who leave their place of employment and are rehired within nine months of leaving must have their earned but unused leave reinstated.
Coordination between FMLA and State and Local Laws
If both FMLA and state and/or local laws apply to the same situation, the employer is required to follow the law that gives the employee greater rights. Generally, if leave laws apply to the same situation, they can run concurrently unless otherwise stated by the state and/or local law.
Managing Leaves of Absence
Coordinating leaves of absence (LOAs) under the various federal and state statutes is one of the more challenging HR responsibilities. Here are some general best practices to get you started in the right direction:
- Ensure all leave policies are in compliance with federal, state and local laws and clearly outline the procedures for requesting all types of leave. .
- Implement a central review process for approving and/or denying leaves of absence. .
- Task one employee with following changes in federal, state and local leave laws. .
- Ensure all requests for leave are handled in a fair and consistent manner. .
- Ensure you are providing all required employee notifications for leaves of absence. .
- Develop appropriate leave request forms to document leave requests and approvals/denials to satisfy recordkeeping requirements. .
- Ensure HR staff and other management is trained on all types of leaves of absence and their legal requirements and obligations. .
- Implement a tracking system to follow employees on a leave of absence and ensure supervisors are kept up-to-date on the employee’s status. .
Staying abreast of changes in federal, state and local leave laws and properly coordinating all legally-required leaves can be tricky for HR staff. Failure to provide required leaves of absence can result in costly legal claims and penalties. Smart HR consultants are well-versed in federal, state and local leave laws and can help you ensure compliance. Call us today.