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Montgomery County Enacts Local "Earned Sick and Safe Leave Act"

October 2015

By: Melissa Calhoon Jones

On June 23, 2015, the Montgomery County Council (Maryland) enacted a new law entitled “Earned Sick and Safe Leave Act” (“ESSLA”), which will take effect on October 1, 2016.

Under this new law, every employer with one or more employees in Montgomery County will be required to provide paid leave for those employees to use under these circumstances:

  • To obtain preventative medical care for the employee or a member of the employee’s family; or care for or treat the mental or physical illness of an employee or an employee’s family member;
  • If the employer’s place of business or the school or child care center for the employee’s family member has closed by order of a public official due to a public health emergency; or
  • To obtain medical attention needed to recover from a physical or psychological injury due to domestic violence, sexual assault, or stalking; obtain services from a victim’s services organization related to domestic violence, sexual assault, or stalking; obtain legal services, including preparing for or participating in a civil or criminal proceeding related to the domestic violence, sexual assault, or stalking; or in connection with temporary relocation due to domestic violence, sexual assault, or stalking.

This law applies to all workers, including tipped employees, except for independent contractors, those who work on call without a fixed schedule, and those who work fewer than 8 hours per week. 

Mandatory accrual will occur at the rate of 1 hour of leave per 30 hours worked in Montgomery County, up to 56 hours per year, although employers may provide more generous accrual rates.  If an employer has less than 5 employees, the first 32 hours of leave accrued must be paid leave, but the remainder may be accrued as paid or unpaid leave.  If an employer has 5 or more employees, all leave accrued must be paid.  Accrual starts at hire; however, an employer may prohibit an employee from using ESSLA leave during the first 90 days of employment.

Employees will be entitled to carry over up to 56 hours of accrued leave at the end of the calendar year unless the employer permits the employee the full use of the year’s accrual at the beginning of the calendar year.  Employees are not entitled to payment for accrued/unused ESSLA leave at termination, and the law expressly permits negative ESSLA paid leave balances to be deducted from final pay.

Employees must be allowed to take leave in the smallest increment that the employer’s payroll system uses to account for absences or work time.  Employers cannot require employees to take their leave in longer than 4-hour increments.  Employees must request leave from the employer as soon as practicable; notify the employer of the anticipated duration of the leave; and comply with any reasonable call out procedures established by the employer.

As is common for employment laws, employers are prohibited from failing to provide leave under ESSLA and for retaliating against employees who have opposed or complained about (or participated in the investigation of) a violation of ESSLA.  In addition, however, employers are prohibited from requiring an employee to find a replacement when using leave, and from requiring detailed information about any condition that is the basis for taking leave (although reasonable documentation may be required under certain circumstances).

This article provides only a brief overview of the highlights of ESSLA.  ESSLA has comprehensive usage, notice, and record keeping requirements, carryover and rehire credit requirements, exceptions for union employees, and many other complexities. 

Employers with employees in Montgomery County should familiarize themselves with the requirements of this law well before October 1, 2016, so that they are prepared for these new responsibilities. 

Melissa Calhoon Jones, chair of the Labor and Employment Group, counsels companies on employment, labor, and immigration issues.  For more information about ESSLA and other employment concerns, please contact Ms. Jones via email or 410.752.9765.

 

Acknowledgement:  Ms. Jones thanks Jacob Byrne, law clerk, for his assistance with this article.

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