Below is a summary of the questions asked during the February 2, 2018 MHWFA Webinar. Not every question raised during the Webinar was answered because some require more information or context to properly respond. Further, many of the questions were covered directly in the slides and the presentation.
The answers below do not constitute legal advice and are not to be relied upon by you as such. The responses provided are based on information currently available, and which is subject to change given pending regulations and possible amendments that may issue. Further, the Department of Labor, Licensing and Regulation (DLLR) is updating the information it shares on the MHWFA on a regular basis, and which is available on its Paid Leave webpage: http://www.dllr.state.md.us/paidleave/
If you are a firm client, you are always welcome to reach out to us for compliance advice and counsel. For any Webinar attendees who are not current firm clients, you may certainly retain us to provide you with advice and counsel as you work towards MHWFA compliance.
Q: Does this law apply to only Maryland-based employers or does it apply to employers who are based in other states (like Virginia or Pennsylvania with a Maryland office)?
A: If an employer has Maryland employees, regardless of where the employer is based (including in another state), the law applies to those employees who work in Maryland.
Q: Are the number of employees counted to determine whether there are 15 or more to include Maryland-only employees or employees located anywhere, nationwide?
A: In determining whether an employer has 15 or more employees, the DLLR will only consider those employees within Maryland. See https://content.govdelivery.com/accounts/MDDLLR/bulletins/1d7ec2b
Q: Does the law apply to employees who work outside of Maryland?
A: If an employee works primarily in another state but performs work in Maryland that is incidental to his or her work performed elsewhere, the employee would not be entitled to earned sick and safe leave (ESS) for those incidental hours or work performed in Maryland. If an employee performs the majority of his or her work in Maryland, the employee is entitled to accrue ESS for all the time working including any incidental work performed in another state. See https://content.govdelivery.com/accounts/MDDLLR/bulletins/1d7ec2b
Q: Can we assume “regularly works” can exclude temporary and seasonal employees, even if they may exceed 12 hours in a week for their short duration of employment?
A: No. Whether an employee regularly works 12 hours per week is a fact-dependent question the answer to which will depend on factors such as the frequency of the “increased” work hours, the broader employment picture, and the duration of the 12-plus hour work week.
Q: Is the accrual to start on February 11, 2018 or do we have to accrue from their hire date?
A: Accrual begins on February 11, 2018, for existing employees and the date of hire for employees hired after February 11, 2018.
Q: If we allow the 40-hour carryover, are we still required to allow them to continue accruing leave into the next year?
A: Employees may accrue up to 64 hours at any given time. Therefore, if you are in a situation where an employee carries over 40 hours of leave, you can cap the accrual when he reaches 64 hours in the subsequent year, assuming he has not used any accrued leave.
Q: If you front-load leave and someone is rehired – we would not need to reinstate unused leave because there is no carry over – correct?
A: Incorrect. If you frontload leave and an employee leaves employment with accrued, but unused leave, you must reinstate that leave if the employee is rehired within 37 weeks.
Q: Do the tracking requirements mean that employers can no longer have a No-Fault Attendance Policy? Under a “No Fault” absentee policy where sick “incidents” are recorded and subject to discipline, are the first 5 days “excluded?”
A: You cannot use earned sick and safe leave absences against an employee as part of an absence control policy. If an employee does not comply with your notice requirements, but could have, you may be able count that absence as part of the absence policy so long as you do not interfere with the employee’s right to use earned sick and safe leave.
Q: How does the 4-hour increment work with exempt employees, or non-exempt employees who work an 8-hour day?
A: You may require that earned sick and safe leave be used in up to four-hour increments. For non-exempt employees, this means that you may require those employees to use earned sick and safe leave for four hours out of the day, though the employee may choose to take the entire day off because of qualifying reasons. Deductions from an exempt employee’s salary may be made for absences of one or more full days occasioned by sickness or disability (including work-related accidents), if the deductions are made “in accordance with a bona fide plan, policy or practice of providing compensation for loss of salary occasioned by such sickness or disability.” Under your sick and safe leave policy, therefore, you may make a deduction for absences of one or more full days because of sickness or disability “before the employee has qualified under the plan, policy or practice, and after the employee has exhausted the leave allowance thereunder.” Deductions from banked leave of less than a full day may be made for exempt employees.
Q: May we go above and beyond the law by renaming our time off on pay stubs, PTO/ESS and allow the entire amount of time off be used for ESS if an employee so desires?
A: Yes. You may provide more protected paid leave than the law requires. If you do so, the protections that are afforded to an employee using ESS will attach, including, for example, the limits on an employer as to when documentation can be requested.
Q: If we had 19 employees last year, active and terminated, but have on average quarterly 10 employees where does this put us at the requirement?
A: To calculate whether you must offer paid or unpaid sick and safe leave, you calculate the average monthly number of employees you employed during the immediately preceding year (12-month period).
Q: Can we require each employee to fill out a PTO form with a brief explanation of how they are using it in order to pay out the PTO? This should help as back up to the tracking process.
A: You may require that employees tell you the reason for the leave, but should require no more than a very brief explanation. Any further inquiry should be guided by and done with the involvement of human resources/benefits.
Q: Can we front-load our salary employees and accrue our hourly employees?
Q: What if they already get paid sick time? Do they get ESS in addition to existing sick time?
A: So long as the paid sick time is equal to what the statute requires (at least 1 hour for every 30 hours worked, up to 40 hours per year, then there is no additional paid leave or ESS required).