Maryland is the latest state to implement a paid sick leave law, H.B. 581, the Maryland Essential Workers’ Protection Act (the Act). Maryland’s law provides paid leave to employees working in Maryland who are unable to work due to a public health emergency related to a communicable disease. The new law became effective on June 1, 2021, but the paid leave provisions are on hold until the state government provides funding.
On May 28, 2021, Maryland Governor Larry Hogan announced his intention to allow the Act, to become law without his signature.
The Act requires essential employers to provide essential workers with paid leave in the event of a declared emergency. The Act defines an emergency as a catastrophic health emergency that is the subject of an executive proclamation under Maryland’s Public Safety Article and is related to a communicable disease.
The Act only applies to what it defines as essential employers and essential workers.
The Act defines essential employers as anyone who employs an essential worker, including units of state or local government. All essential employers are businesses in industries and sectors identified by the Governor or a federal or state agency as critical to remaining in operation during an emergency. It defines essential workers as any individual who (1) performs a duty or work responsibility during an emergency that cannot be performed remotely or is required to be at the worksite and (2) provides services that the essential employer determines to be essential or critical to its operations.
An Essential Worker may take paid Public Health Emergency Leave (PHEL) during a declared public health emergency for a communicable disease.
The Act specifies the reasons for which covered employees can request leave. According to the Act, essential workers may request leave in the following circumstances, when there is an emergency declaration related to a communicable disease:
- To isolate with or without an order;
- To seek or obtain a personal medical diagnosis, preventive care, or treatment;
- To care for a family member who is isolating, with or without an order to do so;
- Due to a determination that the essential worker’s or their family member’s presence at their place of employment or in the community would jeopardize the health of others, or exhibited symptoms; or
- To care for a family member if their school or place of care is unavailable or has been closed.
Once funding is available and an emergency due to a communicable disease is declared in Maryland, essential employers must make certain amounts of PHEL hours available to essential workers.
The amount of leave available depends on the number of hours an employee works per week. The Act provides 112 hours of PHEL for salaried employees or employees who work 40+ hours per week. For employees who regularly work part-time, their PHEL allocation equals the average number of hours that such employee works per week. For employees whose schedule and weekly hours vary, PHEL equals the average number of hours that the employee was scheduled to work per week over the previous six months. If an employee has not worked for the employer for six months, PHEL equals the number of hours per week that the employee is reasonably expected to work when hired.
PHEL benefits are in addition to any other leave benefits due to employees.
The Act does not preempt, limit, or otherwise affect any other paid leave or time-off law that provides for similar benefits that are more generous than what the Act requires employers to provide to essential workers. The Act also allows employers to offer benefits or leave that is in excess of what the Act requires. PHEL provided under the Act is in addition to all other leave or time-off benefits provided by an employer. However, essential employers may require essential workers to provide documentation as proof of their need for leave. Employers may refuse leave to employees that fail to provide such documentation.
On June 1, the Act, H.B. 581 took effect but employer compliance is not required until the state specifies a funding stream.
Although the Act went into effect at the beginning of June 2021, employers are not required to give employees paid leave under the Act until state or federal funding is made available to them. As of June 21, 2021, Maryland has not announced a funding stream for the purpose of funding the Act’s paid leave provision. Once the state allocates funding, essential employers will only need to facilitate PHEL for essential workers in the event that an emergency exists in Maryland. Governor Hogan announced an end to the COVID-19 state of emergency that would have qualified as an emergency requiring essential employers to provide essential workers with PHEL.
EPIC offers this material for general information only. EPIC does not intend this material to be, nor may any person receiving this information construe or rely on this material as, tax or legal advice. The matters addressed in this document and any related discussions or correspondence should be reviewed and discussed with legal counsel prior to acting or relying on these materials.
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