Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
UPDATE: On January 12, 2018, Maryland enacted HB 1, which preempts local paid sick and safe leave laws enacted on or after January 1, 2017. The Prince George’s County Human Relations Commission has informally advised that it considers the state law to preempt Prince George’s County’s law.
On December 12, 2017, Prince George’s County, Maryland enacted Bill Number CB-87-2017, which mandates that covered employees be allowed to accrue and use paid leave for absences connected to domestic violence, sexual assault, or stalking. For employers covered by one or more paid sick and safe time (PSST) laws – such as Montgomery County’s – the new law will be familiar because it follows the framework, and contains many of the same provisions, common to PSST laws. A key difference is that leave under the Prince George’s County law may only be used for what is more commonly known as “safe time.”1 The law is scheduled to take effect 45 calendar days after the Maryland General Assembly adjourns in 2018. The General Assembly is scheduled to adjourn on April 9, 2018,2 setting the effective date at May 24, 2018. Below we discuss what the law requires and highlight common areas of concern to employers where the law is silent.3
The law will apply to employers operating and doing business in Prince George’s County that employ 15 or more persons in the county. Any person an employer permits or instructs to work or be present in the county is considered a covered employee. Although the law does not exempt unionized workforces, the definition of employee contains numerous exceptions, e.g., an individual who performs work under a contract of hire that is determined not to be covered employment under state unemployment law, a real estate salesperson, agricultural workers, and individuals under 18. Employees can use leave for themselves or to care for or assist a family member, which includes a child, grandchild, grandparent, parent, sibling, or spouse.
Accrual and Carryover
Employees must accrue at least one leave hour for every 30 hours worked in the county. For employees who are overtime-exempt under the Fair Labor Standards Act (FLSA), accrual is based on a 40-hour workweek or the number of hours in the employee’s normal workweek, whichever is less. An employer may cap annual accrual at 40 hours per calendar year. At the end of each calendar year, accrued but unused leave must carry over to the next calendar year, but employers may cap carryover at 40 hours. The law allows an employer to award the full amount of leave an employee would earn during a year instead of accruing it, but the law is silent as to whether frontloading leave will eliminate the need for carryover..
Requesting, Using, & Documenting Leave
If an employee’s absence is due to domestic violence, sexual assault, or stalking committed against the employee or the employee’s family member, leave can be used to obtain medical attention needed to recover from a physical or psychological injury, to obtain services from a victim services organization, or to obtain legal services, including preparing for or participating in a civil or criminal proceeding. Additionally, leave may be used during the time an employee temporarily relocates. Employers may cap annual use at 64 hours.
Employees must request leave as soon as practicable, must comply with their employer’s reasonable notice procedures, and must notify their employer of the absence’s anticipated duration. An employer may deny a leave request if an employee both fails to provide required notice and the absence will cause a disruption to the employer. However, employers cannot require employees to disclose details of the mental or physical illness, injury, or condition of the employee or family member when requesting leave.
If an employee uses more than three consecutive days of leave, an employer may require the employee to provide reasonable documentation to verify leave was used for a covered purpose. The requested certification may not, however, require an employee to provide any information that would violate the federal Social Security Act or Health Insurance Portability and Accountability Act (HIPAA).
Leave may be taken in the smallest increment an employer’s payroll system uses to account for other absences, but an employee cannot be required to take leave in an increment of more than one hour.
An employer and employee can mutually agree that the employee may work additional hours or trade shifts with another employee during a pay period to make up the work hours the employee missed for which leave could have been used. However, an employer cannot require an employee to search for or find an individual to take the employee’s place during leave.
Payment for Leave Use
Leave is paid at the same rate and with the same benefits the employee normally earns. Tipped employees must be paid at least the county minimum wage for each leave hour used.
End of Employment / Reemployment Issues
Unlike most PSST laws, the Prince George’s County law does not address whether an employee must be paid the value of accrued but unused leave when employment ends. Nonetheless, it does require that, if an employee is rehired to work in the county within 12 months after leaving the employer, any previously accrued but unused leave must be reinstated.
Employer Notice & Recordkeeping Obligations
Employers must notify employees that they are entitled to leave under the law. The notice must include:
- A statement of how leave is accrued;
- The permitted reasons for which leave can be used;
- A statement that the employer cannot retaliate against an employee for exercising protected rights under the law; and
- Information about an employee’s right to file a complaint with the Human Relations Commission for a violation of the law.
Employers may notify employees by using a to-be-developed model county notice or another notice that contains the same information. Employers may conspicuously display the notice at work locations in the county, include the notice in an employee handbook or in other written guidance distributed to employees, or distribute the notice to each employee at the time of hire.
Additionally, each time wages are paid, employers must provide employees with a written statement of their available leave.
Employers must keep a record of leave accrued and used by each employee for at least three years.
A person cannot obstruct or prevent enforcement or compliance with the law. Additionally, a person cannot retaliate against any person for lawfully opposing any violation of the law or filing a complaint, testifying, assisting, or participating in any manner in an investigation, proceeding, or hearing under the law. Covered employees who did not receive leave to which they were entitled can file a complaint with the Prince George’s County Human Relations Commission. It is unclear whether the same fines, damages, and injunctive the relief the Commission may award under the county’s fair employment practices law will apply to the paid safe time law. It is also unclear whether the statute of limitations will be the same.
What the Law Does Not Address / Next Steps
The Prince George’s County law is shorter and more limited in scope than most PSST laws. As a result, the law leaves many questions for employers, including:
- May employers use an existing paid leave benefit like vacation or PTO to comply with the law?
- May a waiting period be instituted before leave can be used?
- What constitutes “reasonable” documentation of a permitted use of the leave?
- If an absence is also covered by another law that allows an employer to obtain documentation sooner, must the employer wait until an employee has used more than three consecutive days of leave to request supporting documentation?
- If an employer frontloads leave hours, must it track accrual and is it required to carry over unused leave?
- How must employers calculate the rate of pay for commissioned employees, and are any types of pay excluded when calculating the employee’s pay rate?
- Must employers report leave hours on a paystub or may employers provide electronic access to the information?
- What penalties and damages may be awarded for violations of the law?
It is hoped that the Prince George’s County Human Relations Commission will answer these and other questions via FAQs or regulations before the law takes effect. In the interim, employers should monitor the Commission’s webpage4 for updates, including the model notice.
1 In 2015, a complete paid sick and safe time law was proposed in Prince George’s County, but was not enacted.
3 It is hoped the enforcement agency will provide informal guidance or regulations before the law takes effect.