Bereavement Leave Soon Covered By Maryland’s Flexible Leave Act

Michael NearyMichael Neary

A bill passed by the Maryland General Assembly on March 30, 2021 extends the Maryland Flexible Leave Act (“the Act”) to cover bereavement leave. The bill now awaits Governor Hogan’s signature.

Under the Act, covered Maryland employers must allow their employees to use earned paid leave to care for immediate family members (children, spouse, and parents) with an illness. Employees covered by the Act can use their paid leave to care for an immediate family member under the same rules that apply for an employee’s use of paid leave for their own illness.

If approved by Governor Hogan, the Act would now require covered employers to permit employees to use paid leave for the death of a member of the employee’s immediate family. If the employee has multiple forms of paid leave available, the employee may elect the type and amount of accrued leave to use. For purposes of this new bereavement leave, the definition of child includes adult children.

The bill passed with veto proof majorities. As such, Maryland employers should update their leave policies to comply with the changes to the Act before they become effective on October 1, 2021.

For more information, contact Michael at 301-657-0740 or mjneary@lerchearly.com.

What Should Employers Do About the COVID-19 Vaccine?

A Webinar featuring Employment Attorneys Marc Engel and Michael Neary

The COVID-19 vaccine raises many questions for employers. Should you mandate it? Should you recommend it? What policies do you need? 

Lerch Early employment attorneys Marc Engel and Michael Neary on February 11 presented a webinar on how employers should handle issues surrounding the COVID-19 vaccine and plan for the day when the vaccine is readily available.

To view the webinar on Zoom, click here. The passcode is #tFhB3O3.

The webinar was hosted by the Greater Bethesda Chamber of Commerce, the Greater Silver Spring Chamber of Commerce, and the Gaithersburg-Germantown Chamber of Commerce.

If you have any follow-up questions or comments, feel free to reach out to Marc at mrengel@lerchearly.com or Michael at mjneary@lerchearly.com.

Vaccines Eliminate Need To Quarantine For Period Of Time According To CDC

Michael NearyMichael Neary

The big news of the week for employers did not come out of the Department of Labor or Equal Employment Opportunity Commission. Instead, it came out of the Centers for Disease Control and Prevention (“CDC”). After much discussion and speculation in the public health community, CDC announced that asymptomatic fully vaccinated individuals need not quarantine after a subsequent COVID-19 exposure within three months of full vaccination. The CDC guidance is available here.

We all hope the time after full vaccination where an individual need not quarantine following a COVID-19 exposure will extend further if the protection from the vaccine is shown to last longer than three months.

The ramifications of this decision for employers cannot be overstated. Had CDC come down the other way, there was literally no end in sight to the social distancing measures employers have been diligently following in the workplace since the pandemic started. Part of the reason employers follow social distancing is to minimize spread. But another big reason for social distancing within workplaces is to avoid quarantining large segments of employees if one of them contracts COVID. That is because most people within six feet of a confirmed COVID positive individual for 15 minutes or more are subject to a government-mandated quarantine. CDC’s new guidance means that a vaccinated employee can continue to work even if there is a close contact exposure. Given the CDC guidance, the risk of having to quarantine large groups of employees for an exposure will fall as more of the workforce is vaccinated.

Employers should update their own quarantine policies to align with CDC’s updated guidance. And employers should institute robust programs educating employees about the COVID-19 vaccine and encouraging employees to get the vaccine when it is available to increase the number of employees vaccinated. Doing so not only protects your workforce, it also, given the new CDC guidance, minimizes the disruption a confirmed COVID positive case will have on your day-to-day operations.

For more information, contact Michael at 301-657-0740 or mjneary@lerchearly.com.

Managing Your Employees: What New and Small Businesses Need to Know

Michael NearyMichael Neary

Employment attorney Michael Neary presented to new and small business owners on January 19 about managing their employees. You can watch a recording of the presentation here:

Micheal touched on several important topics, including:

1.  Hiring Process and Accompanying Risks
2.  Registering Employees With the State
3.  Immigration Compliance
4.  Documenting Employment Relationship: Offer Letters, Contracts, Equity Grants
5.  Best Practices for Employer Policies
6.  Wage and Hour Issues – Employee/Independent Contractors
7.  Protecting Your Intellectual Property and Trade Secrets
8.  Workplace Health and Safety – COVID-19
9.  Insurance
10.  Benefits

You can find a copy of their presentation here: https://www.lerchearly.com/events/managing-your-employees-what-new-and-small-businesses-need-to-know

For more information, contact Michael at mjneary@lerchearly.com.

EEOC Issues Guidance For Employers Considering Mandatory COVID-19 Vaccine Policies

Michael NearyMichael Neary

On December 16, 2020, the Equal Employment Opportunity Commission (“EEOC”) updated its COVID-19 guidance to address how a COVID-19 vaccine interacts with the equal employment opportunity laws enforced by EEOC. We are likely months away from pharmaceutical companies making the vaccine generally available to the public. But the EEOC guidance is a good resource for employers thinking through whether to institute a mandatory COVID-19 vaccine policy when that day comes.

EEOC Provides a Framework for Mandatory Vaccine Programs

There are three key takeaways from the guidance. First, a policy mandating that employees receive the COVID-19 vaccine is possible provided disability and religious accommodation requests are carefully evaluated. Second, the pre-screening questions that must be asked before a vaccine is administered will likely compel many employers considering a mandatory program to institute a voluntary one instead or to require employees to receive the vaccine elsewhere. Finally, the COVID-19 situation in the country may change dramatically by the time a vaccine is widely available, which could substantially alter EEOC’s guidance. Employers should consider the guidance as they plan but continue to monitor the issue before finalizing any vaccine policies.

EEOC Answers Common Questions Employers Are Asking About Whether To Mandate A Vaccine

The updated EEOC guidance answers a series of questions related to how a mandatory vaccine policy interacts with equal employment opportunity laws. Below is a summary of the questions and answers provided by EEOC.

  • Is an employer administering a COVID-19 vaccine, directly or through a vendor hired by the employer, performing a medical examination under the Americans with Disabilities Act (“ADA”)?
    • Answer: No, with a catch. A medical examination under the ADA is a “a procedure or test usually given by a health care professional or in a medical setting that seeks information about an individual’s physical or mental impairments or health.” While administering the vaccine is not a medical test, pre-screening questions would likely uncover underlying physical impairments and constitute a medical examination under the ADA. Under the ADA, employers can perform medical examinations only if they are “job-related and consistent with business necessity.” To meet this standard, employers would need a reasonable basis, based on objective evidence, to conclude an employee that does not receive the vaccine because of a refusal to answer the pre-screening questions poses a direct threat to the health or safety of the employee or others. COVID-19 conditions on the ground at the time of the mandatory program would dictate whether an employer could meet this standard.
    • The EEOC guidance identifies two ways around this issue. First, an employer could make the program voluntary instead of mandatory. The pre-screening questions do not need to satisfy the job-related and consistent with business necessity standard if the vaccine program is truly voluntary. Second, an employer could mandate employees receive the vaccine from third parties not connected to the employer. Under such a framework, since the third party would ask the pre-screening questions and not the employer, the employer need not satisfy the job-related and consistent with business necessity standard of the ADA. An employer may require an employee to provide proof of having received the vaccine without implicating the ADA so long as the employer makes clear the proof should not disclose underlying physical or mental impairments.
  • If an employer institutes a mandatory vaccine policy, how must it respond if an employee refuses because of a disability?
    • Answer: The employer must perform an individualized assessment under the ADA to determine whether the unvaccinated employee poses a direct threat to the workplace because of a “significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.” In analyzing this question, four factors should be considered: (1) the duration of the risk; (2) the nature and severity of the potential harm; (3) the likelihood that the potential harm will occur; and (4) the imminence of the potential harm. Assuming a direct threat is found, the employer could only exclude the employee if “there is no way to provide a reasonable accommodation (absent undue hardship) that would eliminate or reduce this risk so the unvaccinated employee does not pose a direct threat.” If an employer finds that there is no way to provide a reasonable accommodation, the employer can bar the employee from the workplace but cannot necessarily terminate. Before terminating, the employer would need to determine whether other accommodations are available. Potential accommodations to consider are remote work, paid leave, or an unpaid leave of absence.
  • If an employer institutes a mandatory vaccine policy, how must it respond if an employee refuses because of a sincerely held religious belief?
    • Answer: The employer should assume the religious belief is sincerely held and provide a reasonable accommodation to its mandatory vaccine program for the religious belief, practice, or observance unless it would pose an undue hardship under Title VII of the Civil Rights Act. The undue hardship analysis under Title VII asks whether the accommodation has more than a de minimis cost or burden on the employer. In rare circumstances, an employer having an objective basis to question the nature of the religious belief or the employee’s sincerity in that belief can ask for further information. If the employer cannot provide an accommodation because of undue burden, it can bar the employee from the workplace, but must consider whether alternative accommodations would allow the employee to remain employed without entering the workplace.
  • Is the Genetic Information Nondiscrimination Act (“GINA”) implicated when an employer administers a COVID-19 vaccine to employees or requires employees to provide proof that they have received a COVID-19 vaccination?
    • Answer: No, with a catch. Title II of GINA prohibits employers from (1) using genetic information to make decisions related to the terms, conditions, and privileges of employment; (2) acquiring genetic information except in six narrow circumstances, or (3) disclosing genetic information except in six narrow circumstances. Administering the vaccine or requiring proof that an employee received one does not implicate GINA because neither involves “the use of genetic information to make employment decisions, or the acquisition or disclosure of genetic information as defined by the statute.”
    • The pre-screening questions, however, may implicate GINA. The pre-screening questions for a publicly available COVID-19 vaccine are not clear. If those questions ask for any of the following they would implicate GINA:
      • Information about an individual’s genetic tests;
      • Information about the genetic tests of a family member;
      • Information about the manifestation of disease or disorder in a family member (i.e., family medical history);
      • Information about requests for, or receipt of, genetic services or the participation in clinical research that includes genetic services by the an individual or a family member of the individual; and
      • Genetic information about a fetus carried by an individual or family member or of an embryo legally held by an individual or family member using assisted reproductive technology.
    • If the pre-screening questions ask for this information, EEOC advises it would be wise for employers implementing a mandatory program not to administer the vaccine directly or through a third-party vendor but to require employers to obtain the vaccine elsewhere. When asking for proof of vaccination, the employer should make clear employees are not to provide GINA related information. Such a warning protects an employer from liability if the employee provides GINA protected information along with any proof of vaccine receipt.

For more information, contact Michael at 301-657-0740 or mjneary@lerchearly.com.

Montgomery County Council Enacts Legislation Amending the County’s Ban the Box Law

Michael NearyMichael Neary

Well that happened fast. As discussed in my prior article, the Montgomery County Council was considering a bill to amend the County’s Ban the Box law first introduced in late July. Since mid-September, the Council was awaiting a report on the merits of the bill from the Health & Human Services and Public Safety Committees. The Council received that report on November 10 and promptly voted to pass the bill the same day. The County Executive signed the bill quickly thereafter on November 20. The amendments to the County’s Ban the Box law become effective on February 19, 2021.

The sole change to the draft bill recommended by the two committees was to prohibit employers from considering a conviction for a first offense of misdemeanor Second Degree Assault instead of the prior language prohibiting employers from considering a misdemeanor or felony Second Degree Assault conviction when making employment decisions.

During the November 10, 2020 hearing on the bill, two further changes to the draft legislation were approved by the Council. First, Council Member Jawando moved to amend the bill so that it would apply to any employer with one employee, even if part-time, in the County. Previously, the bill stated it applied if an employer had one full-time employee in the County. This amendment passed 9-0. Second, Council Member Albornoz moved to remove entirely a first conviction of Second Degree Assault from the list of offenses that an employer can never ask about. The expressed rationale behind this amendment was that a misdemeanor Second Degree Assault conviction often arises from a domestic violence offense. Council Member Albornoz’s amendment to the bill passed 5-4. The Council then voted to pass the amended bill 9-0.

As such, once the bill becomes effective, any employer employing one individual, even if part-time, in the County will have to comply with the mandates of the Ban the Box law. All such employers will have to wait until after the employer makes a conditional offer of employment before asking about criminal histories or running criminal background checks. Further, employers can no longer ask about or consider the following criminal offenses:

  1. Any arrest records that did not lead to a conviction;
  2. A first conviction for:
    a. Trespass; or
    b. Disturbing the peace.
  3. A conviction for a misdemeanor if at least three years have passed since:
    a. The date of conviction; and
    b. The date any period of incarceration for the misdemeanor has ended;
  4. Juvenile records deemed confidential by statute; or
  5. Convictions that have been expunged.

Employers also cannot inquire about these offenses when considering current employees for promotions.

The legislation delegates to the County Executive responsibility for preparing implementing regulations and regulations necessary to notify employees and employers of their rights and responsibilities under the legislation.

Employers in Montgomery County should act now to update their hiring processes to ensure compliance with the amendments to the County’s Ban the Box law before they go into effect on February 19, 2021.

For more information, contact Michael at 301-657-0740 or mjneary@lerchearly.com.

Montgomery County Council Considers Legislation to Amend its Ban the Box Law

Michael NearyMichael Neary

A proposed Montgomery County bill greatly expands the County’s law prohibiting employers from asking about the criminal histories of job applicants until after an initial interview. In 2014, the County passed its “Ban the Box” law, which applies to employers with fifteen or more employees. Councilmember Will Jawando proposed an amendment reducing the employee threshold from fifteen to one on July 29, 2020. If passed, any employer in the County employing one individual would have to comply with the mandates of the Ban the Box law.

What Else is in the Proposed Bill?

The proposed legislation also would push the timeline back for when an employer could inquire about criminal histories from after a first interview until after the employer makes a conditional offer of employment. Further, as currently drafted, the bill would prohibit employers from asking about certain criminal offenses. Under the proposed legislation, employers could not ask about or, run a criminal records check to discover, whether the applicant has:

  1. Any arrest records that did not lead to a conviction;
  2. A first conviction for:
    a. Trespass;
    b. Disturbing the peace; or
    c. Second degree assault;
  3. A conviction for a misdemeanor if at least three years have passed since:
    a. The date of conviction; and
    b. The date any period of incarceration for the misdemeanor has ended;
  4. Juvenile records deemed confidential by statute; or
  5. Convictions that have been expunged.

The bill also prohibits employers from inquiring about these offenses when considering current employees for promotions.

The legislation delegates to the County Executive responsibility for preparing implementing regulations and regulations necessary to notify employees and employers of their rights and responsibilities under the legislation.

How Would the Bill Impact Employers?

If passed, the bill would significantly limit employer’s ability to investigate the criminal histories of applicants. The current Ban the Box law simply regulates the timeline for when employers can check the criminal histories of applicants. The public policy behind the current law is that employers may be willing to hire an applicant with a criminal history if the information is learned after the applicant has an opportunity to make a good impression during an initial interview. The proposed legislation, however, would ban inquiry into certain offenses preventing employers from considering them at all during the hiring process. The list of excluded offenses includes what some would consider more than simple nuisance crimes. For instance, a conviction for second-degree assault in Maryland can result from a defendant intentionally or recklessly causing physical contact or physical harm to another.

The legislation also could significantly slow down the hiring process. Employers would not discover an applicant’s criminal history until the end of the hiring process meaning employers might have to start the search again if the employer disqualifies a successful candidate because of a criminal record.

The Council held a public hearing on the bill on September 15, 2020 at which five speakers testified. The Council referred the bill to the Health & Human Services and Public Safety Committees for consideration. The council staff issued a work session staff report to the Committees on September 23, 2020. The next step is for the two Committees to make a recommendation to the full Council on the bill.

For more information, contact Michael at 301-657-0740 or mjneary@lerchearly.com.

On the Hook: Business Owners could be Personally Liable for Employees’ Unpaid Wages

Michael NearyMichael Neary

Employee wages must be the number one debt obligation your business pays on time, no matter the financial burdens your business faces. If your business cannot pay wages, rightsize your workforce immediately – or else you personally could be on the hook for the wages.

A recent Maryland Court of Special Appeals case demonstrates yet again why that is the case. While most business entities limit the possibility of personal liability, the Fair Labor Standards Act, the Maryland Wage and Hour Law, and the Maryland Wage Payment and Collection Act allow for personal liability. In Lin v. Cruz, the Maryland intermediate appellate court again found all three of these wage laws can hold individuals liable for the wages owed by a business under the economic realities test.

The Economic Realities Test

In Lin, a group of employees sued a restaurant and six individuals seeking to recover unpaid wages. The trial court found one individual liable for close to $400,000 in wages and enhanced damages. On appeal, the Lin court affirmed the trial court by applying the economic realities test.

The economic realities test asks whether the individual the plaintiff seeks to hold liable “(1) had the power to hire and fire the employees, (2) supervised and controlled employee work schedules or conditions of employment, (3) determined the rate and method of payment, and (4) maintained employment records.” The economic realities standard can easily extend individual liability past the owners of a business depending on the level of authority the individual had over the employee seeking wages. The ability of plaintiffs’ attorneys to stretch wage statutes to attach liability outside the core ownership group is bolstered by the view expressed in Lin that wage laws should be given an “expansive interpretation” to achieve the “broad remedial purposes” of those laws.

Because of cases like Lin, employees seeking to recover unpaid wages increasingly name individuals as defendants. Plaintiffs filing wage lawsuits can recover the unpaid wage, enhanced damages (up to four times the wage owed in one local jurisdiction), and attorneys’ fees. The enhanced damages increases the exposure for any individual named in a wage lawsuit. Since the economic realities test is fact specific, most individuals named as defendants will find it difficult having the claims dismissed on a motion to dismiss. Accordingly, the individuals could be stuck in the lawsuit through discovery and ultimately, depending on the facts, could be held liable for the damages awarded.

Prioritize Wages No Matter What

Because of the high stakes to the company and individuals in the management group from wage lawsuits, businesses should ensure employees are timely and properly paid for all hours worked no matter how tight the company finances become.

For more information, contact Michael at 301-657-0740 or mjneary@lerchearly.com.