TOP TIP: Maryland DLLR Issues FAQs on Earned Sick and Safe Leave Law

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On February 16, 2018, the Maryland Department of Licensing and Labor Regulation (DLLR) released Frequently Asked Questions (FAQs) on the Maryland Healthy Working Families Act, which requires employers to provide earned sick and safe leave to eligible Maryland employees. The following are points of particular interest from the 10-page document, available on the DLLR’s paid leave webpage:

Only Maryland employees are counted towards the 15-employee threshold for purposes of determining whether the leave must be paid or unpaid. (p. 3)

  • The law applies to the Maryland employees of out-of-state employers. (p. 3)
  • The law does not apply to out-of-state employees of Maryland employers. (p. 3)
  • If an entity has multiple businesses, the DLLR will consider whether each business is a separate employer for SSL by taking into account whether it is considered a separate employer for other legal purposes, including taxes, UI, and WC, as well as the relationship between the entities. (p. 3-4) Thus, it appears that the DLLR will apply some form of joint employer analysis.
  • The employer can front load leave for full-time employees and accrue it for part-time employees. (p. 5)
  • The DLLR acknowledges that the law does not define what it means to “regularly” work less than 12 hours a week, and suggests that it means “normal or customary.” (p. 6) Unfortunately, the DLLR does not further elaborate on what “normal or customary” means.
  • If an employee whose primary work location is Maryland works outside the state, all hours worked, including the out-of-state hours, count for purposes of accrual. (p. 7)
  • The DLLR states that, “After an employee has exhausted all of the leave that he or she is entitled to use under the earned sick and safe leave law, then an employer could apply its normal attendance policies to any absences taken after the leave has been exhausted.” (p. 9) In other words, leave taken for sick and safe leave purposes beyond the statutory entitlement is not protected by the law.
  • Commission-based employee are not paid or tracked on an hourly basis, which is an issue because the law is premised on an hourly basis. The DLLR notes that, for such employees, there are several options. The employer can simply ensure that the employee does not incur a reduction in pay for sick and safe leave absences – if that is the case, no hours need to be tracked. Alternatively, the employer “could impute an average hourly wage to each employee based on commissions earned during a fixed period of time (for example the previous six months) and pay the employee at that rate for absences due to sick and safe leave use.” (p. 10)