• What Employers Need to Know About Montgomery County's New Sick and Safe Leave Act
  • September 16, 2016 | Author: Marc R. Engel
  • Law Firm: Lerch, Early & Brewer, Chartered - Bethesda Office
  • In 2015, Montgomery County joined a number of jurisdictions throughout the country in passing legislation that requires employers to provide earned sick and safe leave to certain employees.

    The Earned Sick and Safe Leave Act, which goes into effect on October 1, 2016, requires that paid sick or safe leave be provided to all employees working in the county, although the amount of leave that needs to be provided differs based upon the size of the employer. The legislation was passed in order to establish minimum standards for earned sick and safe leave in the county because the legislators believe that it was necessary to (a) promote the health and welfare of county residents; (b) safeguard employers and employees against unfair competition; (c) increase the stability of industry in the county; and (d) decrease the need for the county to spend public money for the relief of employees who also live in the county.

    What Constitutes Sick and Sage Leave?

    The act contains a list of the permissible uses of sick and safe leave which is quite extensive. That list includes the following:
    1. Treating the employee’s physical or mental illness, injury, or condition.
    2. Obtaining preventative medical care for the employee or a covered individual.
    3. Caring for a covered individual with a mental or physical illness, injury, or condition.
    4. Closing of the employer’s place of business or an employee’s child’s school or child care center due to a public health emergency.
    5. Caring for a covered individual when a healthcare provider has determined that the family member’s presence in the community would endanger the public.
    6. Missing work due to domestic violence, sexual assault, or stalking of the employee or a covered individual, where the leave is used during temporary relocation of the employee/covered individual or to obtain legal or medical services for the employee/covered individual or the employee/covered individual’s family.
    The act broadly defines the group of covered individuals to include: a biological child, adopted child, foster child, or stepchild of the employee; a child for whom the employee has legal or physical custody or guardianship; a child for whom the employee is the primary caregiver; a biological parent, adoptive parent, foster parent, or stepparent of the employee or the employee’s spouse; the legal guardian of the employee; an individual who served as the primary caregiver of the employee when the employee was a minor; the spouse of the employee; a grandparent of the employee; the spouse of a grandparent of the employee; a grandchild of the employee; a biological, adopted, or foster sibling of the employee; or the spouse of a biological, adopted, or foster sibling of the employee.

    The Provisions of the Act

    The new legislation provides that all employees who are based or work in the county are entitled to accrue sick and safe leave at a rate of one hour for every 30 hours worked subject to certain limitations. Employers in the county with fewer than five employees must provide up to 32 hours of paid sick and safe and 24 hours of unpaid sick and safe leave per year. On the other hand, employers with five or more employees must provide up to 56 hours per year of sick and safe leave per year. This calculation is easier for non-exempt employees than it is for exempt employees.

    For exempt employees, the act provides that in making this calculation employers should assume that the employee worked the number of hours in a normal workweek for that employer up to 40 hours per work week. Importantly, the act covers regular part-time employees provided that they regularly work at least eight hours per week. The act does not extend earned sick and safe leave benefits to independent contractors.

    The act permits employers to decide whether to provide sick leave as it accrues throughout the year, or to provide the entire balance of sick leave to employees at the beginning of the year. If an employer does not provide the full amount of sick and safe leave at the beginning of the calendar year, the employer must allow the employee to carry her sick and safe leave balance of up to 56 hours over to the next year.

    However, if an employer does provide the full amount of sick and safe leave to employee at the beginning the calendar year, it is not required to permit an employee to carry over any leave remaining at the end of the calendar year.

    The act does not require employers to pay unused accrued sick leave upon the conclusion of employment. The statute permits employers to continue to use general paid time off (PTO) policies that combine both vacation and sick leave. Employers, however, will need to ensure that they properly allocate leave that is taken for purposes protected by the statute, and that individuals receive sick and safe leave in an amount that is at least equal to, if not greater than, the amount required by the act.

    What Should Employers Do?

    As is the case with virtually all of the new employment statutes, the act prohibits retaliation against employees who attempt to exercise their rights under the statute or participate in any proceeding or investigation pursuant to the statute. The act also contains a notice requirement. In light of the new legislation, employers should do the following:
    1. Create a policy that addresses earned sick and safe leave for employees who work in Montgomery County.
    2. Train managers and supervisors on how to respond to requests for sick and safe leave.
    3. Publish the appropriate notice required by the act.
    4. Make sure that employees are not retaliated against for attempting to take leave protected by the act.
    5. Appropriately track leave that employees take, particularly in situations where employers are using a PTO system, in order to make sure that the employee is receiving the minimum amount of sick and safe leave required under the act.