Last week, the Maryland General Assembly passed the Maryland Essential Workers’ Protection Act (“EWPA”) (HB 581). The EWPA, formally titled Labor and Employment – Employment Standards During an Emergency (Maryland Essential Workers’ Protection Act) was passed as emergency legislation and will take effect on the date it is signed by the governor (or the date any veto is overridden, if applicable).
The EWPA solidifies how an essential worker is defined under Maryland law and ensures workplace protections for essential workers are followed in the event of a pandemic, such as COVID-19. The EWPA is not exclusive to the current pandemic, and the provisions are in effect during any “catastrophic health emergency … that is the subject of an executive proclamation and is related to a communicable disease.” The EWPA outlines safety precautions an essential employer must take during any applicable emergency, and further provides essential workers’ specific rights and protections.
Essential employer is defined broadly, and means those employers who employ essential workers, including the state or local government.
The provisions of the EWPA only apply to essential employers in industries and sectors identified by the governor or a federal or state agency as critical to remain in operation during the emergency. Specific industries and sectors are not designated in the EWPA. The applicability of the EWPA will depend on the situation of each pandemic and the applicable executive proclamation(s).
Essential worker is defined as one who performs a duty or work during an emergency that cannot be performed remotely or is required to be completed at the work site; AND provides a service that the essential employer determines to be essential or critical to its operations.
Safe Working Conditions
Specific safety requirements are subject to forthcoming regulations that will be issued under COMAR. In the meantime, the EWPA provides that:
- Employers are required to provide working conditions that comply with applicable standards adopted by a federal or state agency;
- Provide necessary safety equipment that is recommended for usage during the emergency to essential workers, at no cost to the employees;
- Ensure that essential workers have access to the applicable safety standards that are in effect (this should be construed as a posting/notice requirement consistent with CDC guidance until more specific regulations once/if issued);
- Essential workers also have a right to refuse to perform an assigned task for medical reasons, and the employer is prohibited from retaliating against an essential worker for exercising this right.
Testing and Reporting Requirements
- In the event of exposure to a communicable disease, essential employers are required to notify employees of the fact that they may have been exposed, but without sharing the name of the employee(s) who have been exposed;
- If an essential worker’s health insurance does not cover the cost of a test, or the employee is unable to obtain a test free of charge, the employer must cover the cost of the test;
- Essential employers must report the positive test results to the Maryland Department of Health. In the report, employers must provide:
- The demographic information of the employee;
- Redact personal identifying information to protect the identity of the employee.
No Required Paid Leave Unless Available Under State or Federal Funding
The EWPA does not create a new paid leave requirement on essential employers unless the federal or state government provides for funding of leave. The EWPA provides that essential employers must provide “Public Health Emergency Leave” to essential workers if either a federal or state government provides funding that can be used for public health emergency leave. It is not clear from the EWPA if the American Rescue Plan Act’s tax credit provision related to COVID-19 leave triggers this provision; forthcoming regulations should clarify this issue.
If funding is made available, essential employers must provide leave in amounts described in the applicable federal program, order, law or regulation. If not defined therein, essential employers must provide leave in the following increments:
- Full-time essential workers who regularly work 40 or more hours per week – 112 hours
- Part-time essential workers who regularly work less than 40 hours per week – an amount equal to the average number of hours worked in a typical four-week working period;
- Essential workers who work a variable schedule – the average number of hours the essential worker was scheduled per week over a six-month period;
- For those essential workers who did not work during the six-month period – an amount equal to the reasonable expectation of average hours per week that the essential worker would normally be scheduled.
The availability of Public Health Emergency Leave is in addition to any earned Sick and Safe Leave an essential worker may have accessible to them under the Maryland Health Working Families Act.
Essential workers do not have a private right of action under the EWPA. The Commissioner of Labor and Industry is tasked with the enforcement of the EWPA under the procedures described Maryland’s Occupational Safety and Health Act, codified at Md. Code, Lab. & Empl. § 5-604. Further, essential employers who violate the act are subject to civil penalties of up to $1,000 for each violation and the Commissioner has authority to order compliance with the EWPA.
It is unknown whether Governor Hogan will sign the legislation, veto it, or if it will become law automatically after 30 days elapses without action from the governor. The EWPA did pass both chambers of the Maryland General Assembly with margins that will allow a veto override. Maryland employers should be aware of this pending legislation and this post will be updated once the Governor takes action on the EWPA.