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Maryland’s Sick and Safe Leave Law – When Bad Legislation Is Good Enough

This is not a political blog.  This is not really a political subject.  Or shouldn’t be.  At least not with respect to the question of whether Maryland’s new paid sick and safe leave law should have been delayed for some reasonable amount of time so that employers could modify existing policies, create new policies, and do the other things required to be compliant with the Maryland Healthy Working Families Act (MHWFA).

The MHWFA took effect this past Sunday and provides what the majority of Marylanders think is a good thing – protected sick/safe leave for qualified employees.  The issue with the MHWFA is that it is poorly drafted and creates a number of unanswered questions that no state official has answered as of this writing.  Concerns over the law’s shortcomings are heightened because the MHWFA contains significant penalty provisions for non-compliance.  One might ask:  shouldn’t employers know what needs to be done in order to comply?  Apparently not.

How did we get to this point?  When members of the legislature voted to override Governor Larry Hogan’s veto, they initiated a 30-day countdown after which time the MHWFA would take effect.  Yesterday was that day.  In the intervening 30 days, attorneys throughout the state have been counseling clients on how to comply with the MHWFA.  Employers have been reviewing, modifying, and creating policies regarding sick and safe leave.  They have also been contacting third party payroll vendors to coordinate the IT and logistical components for reporting leave as required by the MHWFA.  Employers who handle payroll internally have been doing the same with their staffs.

The “scrambling” that has occurred over the last 30 days is not because of the leave mandate.  The vast majority of employers I’ve spoken to take no issue with the law’s leave provisions.  The more concerning components of the law are those that are simply not clear.  The law contains restrictions regarding what employers may or may not ask, and when, and seemingly contradictory provisions regarding when leave can result in disciplinary action.  Then there are the exceptions and exclusions, as well as undefined terms and phrases.  Employers want to know what they have to do . . . and then they’ll do it.

One of my law school professors is an experienced drafter of legislation.  Another is an incumbent legislator.  If I had submitted the MHWFA to either of them, I would have had some redrafting in my future.  In its current form, the MHWFA is not thought through well enough.  And that is the problem.  The State Senate recognized that employers have been scrambling and voted to delay the effective date to July 1.  This was the prudent move.  It would give employers a chance to get policies and practices in place so that they can comply in confidence with the MHWFA, including providing employees with paid (or unpaid) sick and safe leave. 

Yet, the House of Delegates has taken no action.  Judging by his comments, Delegate Luke Clippinger (the lead sponsor of the MHWFA) has no interest in the practical impact of the MHWFA and is instead more focused on partisan politics.  Delegate Clippinger commented to the Baltimore Sun that he was opposed to the delay because businesses should have known the legislature would over ride the Governor’s veto.  Delegate Clippinger is also quoted in the Baltimore Sun as stating, “We’re done.  He’s the governor of the state of Maryland. This is a law on the books. That’s not good governance.”  Seriously.  Delegate Dereck Davis, quoted in the same article, said, “I certainly hope no one sat around that would be impacted by this and did not prep and made certain assumption. . . .  I think we’ve just reached a point now where we’re at the end of the legislative process. . . .  It’s the law of the land; we need to accept that and move on.”  Delegate Clippinger and other supporters of the MHWFA say that DLLR should have had regulations prepared.  While this argument may not be wrong, it misses the point.  Businesses did not fail to draft regulations.

The fact remains that the MHWFA has been law since January 2018 and no longer.  Refusing to give businesses more than 30 days to get into compliance with a law such as this is, to echo Delegate Clippinger, not good governance.

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