Employer Alert: The Maryland Essential Workers’ Protection Act

Garrett Wozniak
Garrett Wozniak
02/03/2021

After cutting short the 2020 legislative session because of the pandemic, the Maryland General Assembly has returned this January with confronting COVID-19 among its highest priorities.  One item employers should be keenly aware is the Maryland Essential Workers’ Protection Act, which would impose multiple new mandates on Maryland employers.

The legislation, cross-filed as House Bill 481 and Senate Bill 486, is scheduled for a hearing in the House this Friday.  The legislation, among other things, seeks to:

Safe Working Conditions – requires that employers provide safe working conditions.  More specifically, during an emergency, covered employers must provide working conditions that:

  • reduce physical harm and mental distress and detriment, and ensure physical health and safety;
  • provide necessary amounts of personal protective equipment at no cost to essential workers;
  • create and maintain written protocols to enforce necessary hygienic practices or disease mitigation measures at a worksite; and
  • provide or implement other measures or requirements to ensure the general health and safety of essential workers.

The legislation defines “unsafe work environment” broadly to mean “any circumstance present at a worksite that renders an essential worker unable to perform required daily duties because the physical condition . . . represents a reasonable threat to a workers’ health or safety.”

The legislation does not define terms like “physical harm,” “mental distress,” or “physical health and safety.”  Instead, the Act relies on broad descriptions, along with the following examples of unsafe environments:  unsanitary workplace conditions; failure to provide PPE; employer failure to follow federal and state health/safety standards related to the emergency; employer failure to develop and enforce health and safety protocols related to the emergency; and employer failure to notify workers of illnesses, broken or improperly functioning equipment, or other dangerous or hazardous conditions which are a reasonable threat to essential worker health or safety.

Hazard Pay – requires employers to pay essential workers an additional $3 per hour in hazard pay dating back to the start of a state of emergency.  The hazard pay requirement is not required for workers who earn $100,000 or more per year.  The legislation appears to contain a typo:  it says that hazard pay is not required if the essential employer earns $100,000 or more per year.  The legislation also contains contradictory language on the start of hazard pay:  it says that the Act applies prospectively but also says that covered workers are eligible for hazard pay dating back to the start of the emergency.

Financial Assistance for Healthcare Costs – requires employers to cover the cost of testing for contagious illness or disease during an emergency if the worker’s benefits do not cover the testing cost.  The legislation also requires employers to provide financial assistance for unreimbursed health care costs to workers who become sick or injured as a result of or related to the emergency.

Bereavement Leave – requires employers to provide at least three (3) days of bereavement leave related to an emergency.

Paid Health Leave – requires employers to provide 14 days of paid health leave during an emergency for an employee’s illness or other health needs related to the emergency.  This emergency paid leave is in addition to leave required by the Maryland Healthy Working Families Act and new federal leave mandates that Congress may require.

Employee Right to Refuse to Work – permits essential workers who, during an emergency, and because of the nature of the work being performed, fear for their own life or health, to refuse to perform a job responsibility that related to the unsafe work environment.  The legislation does not include a mechanism for verification of the reason for the refusal.

Emergency Preparedness Plan – requires employers to create and review annually an emergency preparedness plan for responding to “catastrophic health emergenc[ies].”  The plan must contain steps workers may take if there is retaliation or other unlawful employment practices, procedures for the use and maintenance of PPE, work hours and shifts that apply during a catastrophic health emergency, sanitation procedures, teleworking capabilities, changes in pay and benefits (if any), and processes for informing workers of positive test results for illness.  Employers must post the plan where workers can see it and must also submit the plan to the Maryland Emergency Management Agency and the county-level emergency management director for each county in which the employer has a physical office.

Employee Notice of Infection and Exposure – employers must minimize transmission of infectious disease by informing workers of potential exposure and evacuating the worksite until it has been sanitized.

Health Insurance Special Enrollment Period – requires the Maryland Health Benefit  Exchange to provide a special enrollment period during an emergency for essential workers who are not insured under an employer-sponsored group health benefit plan.

The legislation broadly defines “emergency” to mean:

  • “the imminent threat or occurrence of severe or widespread loss of life, injury, or other health impacts, property damage or destruction, social or economic disruption, or environmental degradation from natural, technological, or human-made causes;” or
  • “an incident, occurrence, or outbreak that is the subject of: an executive order, an executive declaration, or an executive proclamation.”

The definition of “emergency” appears to include snow and other inclement weather related emergencies, and potentially a host of other emergencies beyond the COVID-19 pandemic.

“Essential worker” is an individual, including contractors and subcontractors, in specified industries and sectors who perform a duty or work responsibility during an emergency that cannot be performed remotely or is required to be completed at the worksite. 

The list of covered industries/sectors is broad, and includes the following sectors and industries:  chemical, commercial, communications, critical manufacturing, emergency services, energy, food and agriculture, government facilities, health care and public health, information technology, motor carrier, service (including childcare and elder care providers and staff, and personal services providers), transportation systems, warehousing and distribution, and personnel of any other institution or industry ordered to remain open during the emergency.  The list of covered industries covers nearly six pages of the legislation.  Check the legislation for a detailed listing in Section 3-1602.

The legislation, if passed, would take effect immediately.

We will post updates on the legislation as it advances through the General Assembly.

 

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