Management's Workplace Lawyers

Montgomery County's Sick Leave Law Takes Effect on October 1, 2016

August 19, 2016

By: Fiona W. Ong

We wanted to remind you that Montgomery County’s law requiring employers to provide paid sick and domestic violence leave to employees takes effect on October 1, 2016. Accordingly, you should be prepared to ensure compliance with that law as of the effective date. The Earned Sick and Safe (ESS) Leave Act, which covers all employers with one or more employees in Montgomery County, contains detailed requirements and obligations, as follows:

Which Employees Are Covered:  All employees within the county are covered except for the following:

  • Individuals who meet all of the following: (1) they do not have a regular work schedule with the employer; (2) they contact the employer for work assignments and are scheduled to work within 48 hours; (3) they have no obligation to work for the employer if they do not contact the employer for assignments; and (4) they are not employed by a temporary placement agency.
  • Individuals who regularly work 8 hours or less per week.
  • Independent contractors.

Which Family Members Are Covered:  The law applies a broad definition of various family members, including the following:

  • Spouse
  • Child, including biological, foster, adopted, step, as well as one for whom the employee has legal or physical custody or guardianship, or is the primary caregiver
  • Parent, including biological, foster, adopted, step for the employee or the employee’s spouse, as well as one who was the legal guardian of or primary caregiver for the employee.
  • Grandparent of the employee and the grandparent’s spouse
  • Grandchild
  • Sibling, including biological, adopted or foster, and the sibling’s spouse

Accrual and Carryover of Leave:  Paid ESS Leave accrues at a rate of at least 1 hour for every 30 hours worked in the county.  Exempt employees are assumed to work up to 40 hours in a workweek.  Tipped employees must be paid at a rate of at least the minimum wage for Montgomery County (currently $10.75, to be increased to $11.50 on July 1, 2017).

For employers with 5 or more employees, accrual is capped at 56 hours (seven 8-hour days) per year.  For employers with fewer than 5 employees, accrual is capped at 32 paid hours and 24 unpaid hours.  Total ESS leave hours that may be used by an employee, regardless of the size of the employer, is capped at 80 hours per year.

An employer may make available to the employee the full annual allotment of ESS leave at the beginning of the calendar year.  If it does not do so, it must permit carryover of the balance of any unused ESS leave to the next calendar year, up to a maximum of 56 hours. An employer may permit an employee to borrow against ESS leave that has not yet been earned. 

Accrual commences upon hire, but an employer may prohibit the use of leave during an initial 90-day probationary period.

An employer may implement or retain a paid leave policy, or a collective bargaining agreement, that meets the minimum requirements of this law.

Borrowing and Termination: When an employee terminates employment having borrowed ESS leave that has not yet been earned, or if an employee who has been granted the full annual allotment uses more leave than would have been earned up to the employee’s date of departure, the employer may deduct the advanced amount of ESS leave from the employee’s final paycheck only where there is a written, signed authorization by the employee to allow the employer to do so.

Accrued unused paid ESS leave need not be paid out upon termination.

If an employee is rehired within 9 months, the employer must reinstate the bank of unused ESS leave, except when the employee had previously left voluntarily without good cause, as defined by the Unemployment Insurance law (i.e. the cause is directly attributable to, arising from or connected with the conditions of employment or the actions of the employer).

Purpose of Leave:  The employee may use ESS leave for the following reasons:

  • To care for or treat the employee’s own mental or physical illness, injury, or condition.
  • To obtain preventive medical care for the employee or family member.
  • To care for a family member’s mental or physical illness, injury, or condition.
  • If the employer’s place of business, or family member’s school or child care center, has closed by order of a public official due to a public health emergency.
  • If a health official or health care provider has determined that family member poses a threat to the community because of exposure to a communicable disease.
  • For absences due to domestic violence, sexual assault, or stalking during relocation or to obtain:
    • Medical attention;
    • Services from a victim services organization; or
    • Legal services

Use of Leave:  An employee who seeks to use ESS leave must request such leave as soon as practicable after learning of the need for ESS leave.  The employee must notify the employer of the expected duration of the leave.  In addition, the employee must comply with any reasonable procedures established by the employer when requesting and taking leave.

The employer cannot require the employee to look for or find a replacement worker.  The employer and employee may mutually agree for the employee to work additional hours or trade shifts to make up hours in lieu of taking ESS leave. 

The employee may use ESS leave in the smallest increments used by the employer’s payroll system to account for absences or work time, except that the employee cannot be required to take ESS leave in increments of more than 4 hours.

Verification:  An employer can request reasonable documentation to verify the appropriate use of leave if an employee uses more than 3 consecutive days of ESS leave.  The employer may not require the employee to disclose details of the mental or physical illness, injury or condition of the employee or family member.  In addition, the employer cannot require the employee to provide information that would violate the Social Security Act or the Health Insurance Portability and Accountability Act.

Employer’s Notice and Recordkeeping Requirements:  Each time wages are paid, the employer must provide a written statement of available ESS leave.  This requirement may be satisfied through an electronic system where the employee can access their leave balances.

An employer must also provide notice to employees that they are entitled to ESS leave.  This notice must include the following:

  • A statement of how ESS leave is accrued.
  • The permitted uses of ESS leave.
  • A statement that the employer must not retaliate for the exercise of rights under this law.
  • Information about the right to file a complaint with the Director of the OHR for violation of any rights under this law.

The Montgomery County Office of Human Rights (OHR) will be creating a model notice.  The notice must be transmitted by posting it in a conspicuous and accessible area at each work location in the County, by including it in a written handbook or other writing distributed to all employees, or by providing it to employees upon hire (for new employees). We will alert you when the model notice is available.

Employers must also keep for at least three years records of the ESS leave accrued and used by each employee. These records must be available for inspection by the Director of the OHR upon notice and agreement of a mutually acceptable time.

Prohibited Actions and Enforcement:  Employers may not retaliate against employees for: lawfully opposing any violation of the law; or filing a complaint or otherwise participating in an investigation, hearing or proceeding by the OHR.  In addition, employers may not obstruct or prevent enforcement or compliance with the law.

What Should Montgomery County Employers Do? Now is the time for employers with employees in Montgomery County to review any existing sick leave or PTO policies to ensure that they comply with the very technical requirements of this new law. Or if an employer does not yet provide such leave, it should develop the appropriate sick leave policies and procedures. You may contact any Shawe Rosenthal attorney for assistance.