Paid Leave and Coronavirus — Part 29: Maryland Passes Paid Public Health Emergency Leave Mandate; Practical Effect Remains Unclear

Seyfarth Synopsis: On May 28, Maryland Governor Larry Hogan announced his intention to allow H.B. 581, the Maryland Essential Workers’ Protection Act (the “Act”), to become law without his signature. On June 1, the Act took effect.

While the Act contains a number of provisions regarding “Essential Employers” and actions they must take related to occupational safety and health during an “emergency,” the Act also creates a new paid public health emergency leave (“PHEL”) mandate. The PHEL mandate allows “Essential Workers” to take paid leave for certain COVID-19 related reasons. The PHEL mandate applies prospectively only, and is in addition to other paid leave benefits required under Maryland law.

Although technically in effect, employers are not required to provide leave until the date on which state or federal funding is made available to them for this purpose. Currently, no funding stream for the Act has been specified. It remains to be seen if and when funding will be allocated. Additionally, even if funding is made available, covered employers must only provide PHEL during an “emergency” as defined under the Act (see below). The current Maryland State of Emergency due to COVID-19 was renewed by Governor Hogan on May 12, 2021 (after regular renewals since March 2020), and appears set to expire on June 11, 2021, unless renewed further.

On April 12, 2021, H.B. 581 was passed by both chambers of the Maryland General Assembly and sent to Governor Larry Hogan’s desk. On May 28, 2021, Governor Hogan announced his intention to allow the bill to become law without his signature. On June 1, 2021, H.B. 581 took effect.[1]

Among other components,[2] the Act requires that “Essential Employers” provide their “Essential Workers” with paid PHEL during a declared “emergency.” The Act defines “emergency” as “a catastrophic health emergency…that is the subject of an executive proclamation under § 14–3A–02 of the Public Safety Article and is related to a communicable disease.” Such an “emergency” currently exists in Maryland due to COVID-19 per the terms of Governor Hogan’s May 12 renewal of the previously declared State of Emergency.

Despite COVID-19 and the new PHEL mandate, the practical effect of the mandate is limited. Notably, without another renewal of the Maryland State of Emergency due to COVID-19, the current declaration will expire on June 11, 2021, and the PHEL mandate will no longer apply. Additionally, employers are only required to provide PHEL as of the date on which state or federal funding is made available to them for this purpose. As of the date of this publication, there is no funding stream identified within the statute itself, in the corresponding Fiscal and Policy Note, or by the Maryland Department of Labor.

Once funding is made available and assuming an “emergency” is still in place in Maryland, full-time Essential Workers who work at least 40 hours per week will receive 112 hours of PHEL. Part-time Essential Workers with a regular schedule will receive an amount of PHEL hours equivalent to the average hours worked during a typical 4-week working period. Essential Workers with variable schedules will receive PHEL that is equal to either their average number of hours worked in the 6-month period ending on the date on which the public health emergency was declared, or alternatively, if no hours were worked in that period, the greater of either the reasonable expectation at the time of hiring or the average number of hours per week that the Essential Worker is normally scheduled to work.

Essential Workers are permitted to use PHEL for specific reasons due to their own COVID-19-related needs, as well as the needs of covered family members. Importantly, the Act does not expressly provide PHEL in order to obtain COVID-19 vaccinations.[3]

The PHEL mandate applies prospectively, and does not affect traditional non-COVID-19 paid leave benefits required under state or local law.[4]

Key provisions of the PHEL mandate are summarized below.

Covered Individuals

The Act covers only “Essential Workers,” defined as any individual who (1) performs a duty or work responsibility during an emergency that cannot be performed remotely or is required to be at the work site, and (2) provides services that the Essential Employer determines to be essential or critical to its operations.

Covered Employers

The Act covers “Essential Employers,” defined as anyone who employs an “Essential Worker” (defined above), including units of state or local government. It appears that the PHEL mandate applies to all Essential Employers in industries and sectors identified by the Governor or a federal or state agency as critical to remain in operation during the emergency.

Amount of Leave

See above for the amounts of PHEL available to Essential Workers based on their hours worked and whether their work schedules are regular or varied.

Use of Leave

As noted above, Essential Employers are required to provide PHEL as of the date on which state or federal funding is made available to them for this purpose. No funding stream has been identified.

If and when funding is made available to Essential Employers, Essential Workers may use PHEL for a number of reasons pertaining to the Essential Worker themselves, or a covered family member. “Family Member” broadly includes the following: (1) child; (2) parent; (3) spouse; (4) grandparent; (5) grandchild; and (6) sibling.

Covered reasons for use of PHEL include the following:

• To isolate without an order to do so because the Essential Worker (1) has been diagnosed with the communicable disease that is the subject of the emergency, or (2) is experiencing symptoms associated with the communicable disease that is the subject of the emergency and is awaiting the results of a test to confirm the diagnosis;
• To seek or obtain a medical diagnosis, preventive care, or treatment because the Essential Worker is diagnosed with the communicable disease that is the subject of the emergency;
• To care for a family member who is isolating, without an order to do so, because of a diagnosis of the communicable disease that is the subject of the emergency;
• Due to a determination by a public health official or health care professional that the Essential Worker’s or their family member’s presence at their place of employment or in the community would jeopardize the health of other individuals because of the Essential Worker’s or family member’s exposure to, or exhibited symptoms associated with, the communicable disease that is the subject of the emergency, regardless of whether the Essential Worker or family member has been diagnosed with the communicable disease; or
• To care for a child or other family member (1) when the care provider of the family member is unavailable due to the emergency, or (2) if the child’s or family member’s school or place of care has been closed by a federal, state, or local public official or at the discretion of the school or place of care due to the emergency, including if the school or place of care is physically closed but providing instruction remotely.

The Act permits Essential Employers to adopt and enforce policies that prohibit the improper use of PHEL (i.e., for reasons not listed above), including prohibiting a pattern of abuse of the leave.

Coordination of Leave Benefits

The PHEL provided by the Act is in addition to any other leave or benefits already provided, including general paid sick leave unrelated to COVID-19 that is already required under Maryland law. The Act does not preempt, limit, or otherwise affect any other law that provides for PHEL benefits that are more generous than those required by the Act, or any workers’ compensation benefits. Additionally, it does not limit Essential Employers from providing additional PHEL or any other type of leave in excess of what is provided for in the Act.

Documentation

Essential Employers may require an Essential Worker who uses PHEL to provide documentation of their need for the leave. If the employee fails or refuses to provide the documentation, the Essential Employer may refuse to pay the employee for the PHEL taken.

No Payout

The Act does not require Essential Employers to compensate Essential Workers for unused PHEL when the Essential Worker leaves employment.

What Else Should Employers Know?

With the COVID-19 and paid leave landscape continuing to expand and grow in complexity, companies should reach out to their Seyfarth contact for solutions and recommendations on addressing compliance with Massachusetts state and local COVID-19 and non-COVID paid sick leave laws, and paid leave requirements more generally. Consult Seyfarth’s COVID-19 Resource Center for updated information regarding the rapidly evolving COVID-19 situation and its impact on the workplace.

To stay up-to-date on Paid Sick Leave developments, click here to sign up for Seyfarth’s Paid Sick Leave mailing list. Companies interested in Seyfarth’s paid sick leave laws survey should reach out to paidleave@seyfarth.com.

 

[1] Maryland joins several other jurisdictions with supplemental or emergency paid sick leave requirements that were passed in response to COVID-19, including California, Massachusetts, New York, and Philadelphia, PA. 

[2] In addition to the public health emergency leave mandate, the Act also imposes several workplace safety standards and other obligations on covered employers. For assistance or recommendations for compliance with other provisions of the Act, employers should reach out to their Seyfarth contact.

[3] Although the Act permits an Essential Worker to use available PHEL “to seek or obtain…preventive care,” the reason for use qualifies that the “preventive care” must be “because the essential worker is diagnosed with the communicable disease that is the subject of the emergency.”  Thus, while different from many other similar ordinances in various jurisdictions, until further or different guidance is provided, employers should proceed accordingly. 

[4] Maryland is home to two general, non-public health emergency or COVID-19-specific  PSL mandates — a statewide PSL law, known as the “Maryland Healthy Working Families Act,” and a local PSL ordinance in Montgomery County.