New Employment Laws in Maryland – COVID-19, Mandatory WARN Requirements, Salary History Ban, Hair Discrimination and More!

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In the midst of the COVID-19 pandemic, the Maryland General Assembly managed to pass well over 600 bills in the three days before the session’s early adjournment. One of the bills, which has already been signed into law, was emergency legislation intended to address the COVID-19 situation. There were a number of other significant employment bills that have been sent to the Governor’s desk as well. The Governor can choose to sign them into law, allow them to become law without his signature, or veto them (with the possibility of a veto override when the General Assembly next convenes, which may be for a special session in May). Assuming that they become law, these remaining bills will take effect on October 1, 2020.

COVID-19 Public Health Emergency Protection Act of 2020 (HB1663/SB1080). This law contains several employment-related provisions, in addition to others, intended to address the current COVID-19 emergency in Maryland. It will remain in effect only until April 30, 2021.

The law provides that an employee who is temporarily unable to work for the following COVID-19-related reasons will be eligible for unemployment insurance benefits:

  • The employer temporary ceases operations due to COVID-19, preventing employees from coming to work. (This provision is likely implicated by the Governor’s shut-down order for non-essential businesses, which we discussed `in our March 23, March 24, and March 25 E-lerts).
  • The employee is quarantined due to COVID-19 with the expectation of returning to work after the quarantine is over.
  • The employee leaves employment due to a risk of exposure or infection of COVID-19 or to care for a family member due to COVID-19. (This would apply to situations where an employee is sent home by the employer due to a possible exposure to COVID-19. In addition, we note that the “due to COVID-19” language with regard to the care of a family member is very vague and broad, and therefore conceivably could cover school closures or situations where the employee must provide care for a child or parent who has been exposed to, but is not showing symptoms of, COVID-19).

The law also protects employees from being terminated solely because the employee has been required to be isolated or quarantined under Maryland law. (Notably, this is a right that already exists in Maryland law. Now it exists twice over.) An order of isolation or quarantine is defined in the Maryland law, both in the Public Safety article and the Health article, and requires a directive of the Secretary of Health that meets very specific requirements, including a right to a hearing to challenge the directive. Thus, the Governor’s shut-down order and employer requirements for employees who may have been exposed to COVID-19 to self-quarantine do not meet the definition of a “quarantine” under state law.

Mandatory WARN Act (HB1018/SB0780). Similar to the federal Worker Adjustment and Retraining Notification Act, Maryland has a law providing for certain notifications to employees in the case of a reduction in operations, although unlike the federal WARN Act, Maryland’s mini-WARN has been voluntary. This bill, however, makes the state law mandatory.

Maryland’s mini-WARN applies to employers with at least 50 employees operating an industrial, commercial or business enterprise in the State for more than one year. It is triggered by a reduction in operations, meaning either:

  1. the relocation of part of its operation from one workplace to another; or
  2. the shutting down of a workplace or a portion of its operations that reduces the number of employees by the greater of at least 25% or 15 employees over a 3-month period (not counting employees working less than an average of 20 hours a week or who have worked less than 6 of the preceding 12 months).

A “workplace” is defined as a factory, plant, office or other facility where employees produce goods or provide services, but does not include construction sites and temporary workplaces.

The law also exempts the following types of reductions in operations by private employers: resulting solely from labor disputes; occurring at construction sites or other temporary workplaces (redundantly); resulting from seasonal factors customary in the industry (as determined by the state Department of Labor); or resulting from an employer’s bankruptcy.

Under the bill, an employer must give a 60-day (a reduction from the voluntary 90 days under the existing law) written notice prior to a reduction in operations to:

  • All employees at the workplace that is subject to the reduction in operations, including those working on average less than 20 hours a week and those who have worked less than 6 months during the prior 12-month period;
  • Any representative or bargaining agency representing those employees (i.e. a union);
  • The state Dislocated Worker Unit; and
  • All elected officials in the jurisdiction where the affected workplace is located.

The required notice must include:

  • The name and address of the affected workplace;
  • A supervisor’s name, telephone number and email address to contact for further information;
  • A statement explaining whether the reduction in operations is expected to be temporary or permanent, and whether the workplace is expected to shut down; and
  • The expected date the reduction in operations will begin.

The bill further directs the Secretary of Labor, in cooperation with the Workforce Development Board, to develop mandatory guidelines regarding the required written notice and the continuation of benefits, such as health, pension, and, of particular concern, severance. (New Jersey recently amended its mini-WARN act to require the payment of severance).

If there is a violation, the Secretary can issue an order compelling compliance and may assess a discretionary civil penalty of up to $10,000 per day. The following factors will be considered in determining the amount of the penalty: the gravity of the violation, the size of the business, the employer’s good faith, and the employer’s history of prior violations. The Commissioner’s penalties shall be subject to notice and hearing requirements.

Salary History Ban (HB123). Riding the wave of salary history bans in other states and local jurisdictions, this bill imposes a number of obligations and prohibitions:

  • It requires an employer to provide the wage range for the position in question upon an applicant’s request.
  • It prohibits an employer from relying upon an applicant’s wage history in screening, hiring, or determining wages.
  • It also prohibits an employer from asking for wage history, whether orally, in writing, or through an employee or agent, or from a current or former employer.
  • It prohibits an employer from retaliating against, or refusing to interview, hire, or employ an applicant who did not provide their wage history or who requested the wage range for the position in question.
  • It acknowledges that an applicant may voluntarily provide their wage history.
  • After a conditional offer of employment is made, it permits the employer to confirm and to rely on voluntarily-provided wage history to support a higher wage offer than initially offered, as long as the higher wage does not create an unlawful pay differential based on sex or gender identity.

Applicants may complain of violations to the Commissioner of Labor and Industry. The Commission can issue an order compelling compliance. The Commissioner also has the discretion to issue a letter compelling compliance for a first violation, a civil penalty of up to $300 per applicant for a second violation, and a civil penalty of up to $600 per applicant for each subsequent violation occurring within three years of a prior violation. The following factors will be considered in determining the amount of the penalty: the gravity of the violation, the size of the business, the employer’s good faith, and the employer’s history of prior violations. The Commissioner’s penalties shall be subject to notice and hearing requirements.

Hair Textures and Hairstyle Discrimination Ban (HB1444/SB0531). In the wake of public outrage over media reports that a high-school wrestler was forced to cut off his locks before a match, several states and local jurisdictions passed laws prohibiting discrimination based on hairstyles associated with race. This bill follows that lead, and adds “protective hairstyle” including braids, twists, and locks to the list of characteristics that are protected from discrimination under state law. It also clarifies that “’Race’ includes traits associated with race, including hair texture, afro hairstyles, and protective hairstyles.”

Virginia enacted similar legislation, effective July 1, 2020.

Equal Pay Act Revision (HB0014). Maryland’s Equal Pay Act was expanded in 2016 to prohibit discriminatory pay practices based on gender identity as well as sex and to add a new pay transparency provision. The bill amends the law to prohibit taking any adverse employment action against an employee for asking about the employee’s own wages, as well as the wages paid to other employees.

Heat Stress Standards (HB0722). This bill requires the Commission of Labor and Industry to develop regulations on or before October 1, 2022, requiring employers to take certain actions to protect employees from heat-related illness. Maryland Occupational Safety and Health will hold informational hearings in four different locations within the State to obtain input. The Commissioner is directed to consider standards created by the National Institute for Occupational Safety and Health, the American Conference of Governmental Industrial Hygienists, and the American National Standards Institute.

Revised Definition of Family Member Under Maryland Healthy Working Families Act (HB0880). The 2018 Maryland Healthy Working Families Act requires employers to provide paid sick and safe leave for employees, which can be used to care for family members. This bill expands the provision of “family member” to now include the employee’s ward, as well as the legal guardian or ward of the employee’s spouse.

Facial Recognition Technology for Applicants (HB1202). This bill prohibits the use of a facial recognition technology during an applicant’s interview without their consent. An applicant may consent to the use of such technology by signing a waiver that contains the applicant’s name, the interview date, the applicant’s consent to the use of facial recognition during the interview, and whether the applicant read the consent waiver.

Adjusting the Amount for Wage Complaints to the Commissioner (SB0119). Under current law, there is a wage complaint resolution procedure before the Commissioner of Labor and Industry, and the bill increases the cap on the amount eligible for this procedure from $3000 to $5000.

List of Incentive Programs for Hiring and Retraining the Formerly Incarcerated (HB0835). This bill directs the state Department of Labor to develop and make available on its website a list of federal and state incentive programs available to an employer who hires and trains formerly incarcerated individuals.