United States: If Pain, Yes Gain—Part XLII: Maryland Becomes Ninth State To Enact Paid Sick Leave Law

Seyfarth Synopsis: Following successful votes by the Maryland Senate and House of Delegates to override Governor Larry Hogan's veto of a 2017 paid sick leave bill, on January 12, 2018 Maryland became the ninth state in the country to pass a mandatory paid sick leave law. While the effective date could be delayed given the procedural hurdle of having to override the Governor's veto, the law currently is scheduled to go into effect on February 11, 2018.

As the 2018 calendar year (and, by extension, flu season) are now upon us, so too is the country's ninth statewide paid sick leave law. On January 12, 2018, the Maryland Senate voted to override Governor Larry Hogan's 2017 veto of a paid sick leave bill that was passed by the Maryland legislature during the 2017 legislative session. The Senate's successful vote follows the Maryland House of Delegates' vote from January 11, 2018 to override the Governor's paid sick leave veto.1

The Maryland paid sick leave law, which is known as the Healthy Working Families Act ("HWFA" or the "Act") is scheduled to go into effect on February 11, 2018 -- 30 days from the January 12th state Senate vote. Under Maryland law, bills that become law following an overridden governor veto take effect on the later of the effective date listed in the bill or 30 days after the override. Because the HWFA calls for a January 1, 2018 effective date, the current effective date is scheduled for February 11, 2018. We will continue to monitor the HWFA effective date and provide any updates on whether this date is extended to afford affected businesses more than a 30-day window to comply.

Here are the highlights of the HWFA:

  • Preemption of Local Paid Sick Leave Laws: The HWFA does not preempt or otherwise affect any other law that provides more generous paid sick leave benefits than that provided under the HWFA. However, there is one major caveat. Namely, local Maryland jurisdictions are preempted from passing ordinances on or after January 1, 2017 that impose sick and safe leave obligations on private employers. As a result, the Montgomery County, MD Earned Sick and Safe Leave Act, which went into effect on October 1, 2016 and was amended in November 2016, is shielded from the HWFA's preemption, but the preemption would apply to the Prince George's County Earned Sick and Safe Leave ordinance, which was enacted on December 12, 2017 and planned to go into effect in May 2018. It is unclear if the January 1, 2017 preemption cutoff date will be updated in consideration of the delay in enacting the HWFA.
  • Existing Paid Leave Policies: The HWFA expressly states that employers do not need to modify existing paid leave policies to comply with the Act if (a) employees can accrue and use paid leave under terms and conditions that are at least equivalent to paid sick leave provided under the Act, or (b) the paid leave policy does not reduce employee compensation for an absence due to sick or safe leave. At this time, the safest course of action for employers that want to use an existing non-sick paid leave policy for HWFA compliance is to ensure their existing policy meets all substantive, technical requirements of the Act. That being said, the HWFA later states in the law that an employer's existing paid leave policy will be "presumed to be equivalent" to the sick and safe leave provided under the Act if the existing policy allows an employee to (i) accrue paid leave at least as fast as sick and safe leave accrual under the HWFA, and (ii) use paid leave for the same purposes set forth in the HWFA. We expect this position to be further clarified in forthcoming sick leave rules and regulations from the state and will provide updates as new information becomes available.

    • Types of "Existing Paid Leave": The HWFA notes that "existing paid leave" includes vacation days, sick days, short-term disability benefits, floating holidays, parental leave, and other PTO.
  • Employee Eligibility: The HWFA excludes certain individuals from its definition of "employee." Specifically, the HWFA excludes individuals who (a) work under a contract for hire that is determined not to be covered employment under Maryland law, (b) are certain licensed real estate salespersons or brokers, (c) are under the age of 18 years old before the beginning of the year, and (d) are employed in the agricultural sector on an agricultural operation.

    • Staffing Agencies: The HWFA also expressly excludes individuals who are employed by a temporary services agency to provide temporary staffing services to another person as long as the agency does not maintain day to day control over and supervision of the individual's work assignments while he/she is providing the temporary services. In addition, the HWFA states that an employee does not include someone who is directly employed by an employment agency to provide part-time or temporary services to another person.
    • Weekly Hours Worked: The HWFA does not apply to an employee who regularly works less than 12 hours per week for an employer.
    • Construction Industry: The HWFA does not apply to an employee who works in the construction industry and is covered by a collective bargaining agreement that expressly waives the HWFA's requirements in clear and unambiguous terms. This exception does not apply to individuals who are employed as a janitor, building cleaner, building security officer, concierge, door person, handyperson or building superintendent.
    • Health or Human Services Industry The HWFA does not apply to an employee who (a) is called to work by the employer on an as needed basis in the health or human services industry, (b) can reject or accept the shift offered by the employer, (c) is not guaranteed to be called on to work by the employer, and (d) is not employed by a temporary services agency.
  • Covered Employers: Employers with 15 or more employees must provide paid sick and safe leave benefits to eligible employees, while employers with fewer than 15 employees must provide their employees with unpaid sick and safe leave benefits. An employer's number of employees is determined by calculating the average monthly number of employees employed during the immediately preceding year. The HWFA explains that each employee of an employer is included in this calculation, regardless of whether the employee is a full-time, part-time, temporary or seasonal employee or would be eligible for paid sick leave under the HWFA.
  • Start of Accrual: Employees begin to accrue sick and safe leave on the later of their date of hire or, presumably due to the delay in overriding the vetoed sick leave bill, the HWFA's February 11, 2018 effective date or other effective date that is set (see above for further discussion on the HWFA's effective date).
  • Accrual of Sick Leave: Eligible employees will accrue sick and safe leave at a rate of at least one hour for every 30 hours worked. Unlike most paid sick leave laws and ordinances which contain either an annual accrual cap or a "point in time" accrual cap,2 covered Maryland employers must comply with both forms of accrual caps. The HWFA states that employees can accrue up to 40 hours of sick and safe leave per year.3 Further, the HWFA sets a 64 hour "point in time" accrual cap, meaning that employers are only required to allow employees' bank of accrued, unused sick and safe leave to reach 64 hours at any one time.

    • Exceptions to Accrual: Employers are not required to allow an employee to accrue sick and safe leave during a (a) two-week pay period in which the employee worked less than 24 hours total, (b) one-week pay period if the employee worked less than a combined total of 24 hours in the current and immediately preceding pay period, or (c) pay period in which the employee is paid twice a month, regardless of the number of weeks in a pay period, and the employee worked fewer than 26 hours in the pay period.
    • Exempt Employees: For purposes of sick and safe leave accrual, an employee exempt from the FLSA's overtime wage requirements is presumed to work 40 hours each workweek, unless the employee's normal workweek is less than 40 hours, in which case the number of hours in the normal workweek should be used.
  • Usage Cap: Employers must allow eligible employees to use at least 64 hours of sick and safe leave in a year.
  • Year-End Carryover: Subject to the "frontloading" exception discussed below, employees must be allowed to carry over up to 40 hours of earned, unused sick and safe leave at year-end.
  • Frontloading: The HWFA states that employers can award employees the full amount of sick and safe leave that they would earn over the course of the year at the start of each year instead of following an accrual system. Moreover, adopting a frontloading system will absolve employers' year-end carryover obligations under the Act.
  • Usage Waiting Period: Employers are not required to allow an eligible employee to begin using earned sick and safe leave during the first 106 calendar days the employee works for the employer.
  • Increments of Use: While an employer generally must allow employees to use sick and safe leave in the smallest increment that the employer's payroll system uses to account for absences or use of the employee's work time, the HWFA expressly states that an employer can require employees to take the leave in an increment not exceeding four hours.
  • Protected Reasons for Use: Under the HWFA, employees can use sick and safe leave for the following absences:

    • To care for or treat the employee's own mental or physical illness, injury or condition, or to obtain preventive medical care;
    • To care for a covered family member with a mental or physical illness, injury or condition, or to obtain preventive medical care for the family member;
    • For maternity or paternity leave; or
    • For certain absences from work that are necessary due to domestic violence, sexual assault, or stalking committed against the employee or the employee's covered family member.
  • Covered Family Members: The HWFA defines covered family members to include children, parents, spouses, grandparents, grandchildren, and siblings. "Child" includes a biological, adopted, foster, or step child of the employee, a child for whom the employee has legal or physical custody or guardianship, and a child for whom the employee stands in loco parentis, regardless of the child's age. "Parent" includes a biological, adoptive, foster or step parent of the employee or the employee's spouse, the legal guardian of the employee, and an individual who acted as a parent or stood in loco parentis to the employee or the employee's spouse when they were a minor. The HWFA defines "grandparent," "grandchild," and "sibling" to include biological, adoptive, foster and step relationships.
  • Payment of Leave: When employees use paid sick and safe leave under the HWFA, the leave should be paid at the same wage rate as the employee normally earns. Employers are not required to pay a tipped employee more than the applicable minimum wage for use of paid sick and safe leave.
  • Employer Ability to Prohibit Employee Abuse: The HWFA expressly allows employers to adopt and enforce a policy that prohibits employees from improperly using sick and safe leave, including prohibiting a pattern of abuse of paid sick and safe leave.
  • Employee Notice to the Employer: Foreseeable Absences: An employer can require the employee to provide reasonable advance notice of not more than seven days before the sick and safe leave will begin; Unforeseeable Absences: An employer can require the employee to provide notice as soon as practicable.

    • Employer Ability to Deny Employee Request: The HWFA notes that an employer can deny an employee's request to use sick and safe leave if the employee failed to provide the required notice and the absence would cause a disruption to the employer.
  • Documentation: Employers can require an employee to provide documentation justifying that their sick leave absence was appropriate if (a) the leave was used for more than two consecutive shifts or (b) the employee used the leave between the 107th and 120th calendar days (both inclusive) of their employment, and the employee agreed to provide documentation under terms agreed upon by the employer and employee when the employee was hired.

    • Employer Ability to Deny Employee Subsequent Request: The HWFA states that if an employee fails or refuses to provide required documentation, the employer can deny an employee's subsequent request to take sick and safe leave for the same reason.
  • Notice of Available Leave: The HWFA mandates that employers provide employees with a statement of their available sick and safe leave balance each time wages are paid. This requirement can be met through the use of an online system.
  • Notice and Posting Requirement: The HWFA states that employers must notify employees of their entitlement to sick and safe leave under the Act. The notice must include various topics, including a statement about how sick and safe leave is accrued and the reasons for which the leave can be used under the Act. While the Act does not state whether this notice requirement includes a posting obligation and/or obligation to provide individual notice to employees upon hire, it does state that the Maryland Commissioner of Labor and Industry must create and distribute to employers a poster and model notice for compliance with this notice requirement.
  • Recordkeeping: Employers must keep for at least three years a record of sick and safe leave accrued and used by each employee.
  • No Payout on Termination: The HWFA does not require employers to compensate employees for earned, unused paid sick and safe leave upon separation of employment. However, if an employee is rehired by the employer with 37 weeks of separation, the employer must reinstate any earned, unused sick leave to the employee. This reinstatement requirement does not apply if the employer paid an employee for his/her unused sick and safe leave upon separation.

Employers should take steps now to comply with the requirements of HWFA before the Act's current February 11, 2018 effective date. Here are some steps to consider:

  • Review existing sick leave policies and either implement new policies or revise existing policies to satisfy the HWFA.
  • Review policies on attendance, anti-retaliation, conduct, and discipline for compliance with the HWFA.
  • Monitor the Maryland Department of Labor and Industry website for information on the HWFA, including a model poster, model notice, and proposed and final regulations.
  • Train supervisory and managerial employees, as well as HR, on the new requirements.

We will continue to monitor and provide updates on Maryland paid sick leave developments as the February 11th effective date approaches and any changes that take place thereafter. To stay up-to-date on Paid Sick Leave developments, click here to sign up for Seyfarth's Paid Sick Leave mailing list.


1 The other eight states that have passed a statewide mandatory paid sick leave law are: (1) Connecticut; (2) California; (3) Massachusetts; (4) Oregon; (5) Vermont; (6) Arizona; (7) Washington; (8) Rhode Island. The Rhode Island governor signed the state's paid sick leave law on September 28, 2017 and it is scheduled to go into effect on July 1, 2018. The Washington statewide paid sick leave law went into effect on January 1, 2018. The other six statewide laws are in effect.

2 The Minneapolis and St. Paul paid sick leave ordinances are among the few existing paid sick leave jurisdictions that impose both an annual and "point in time" accrual cap on covered employers. For more information, here are our prior alerts on Minneapolis and St. Paul paid sick leave.

3 The HWFA defines "year" as a regular and consecutive 12-month period as defined by the employer.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions