Maryland may soon join Virginia and D.C. in establishing COVID-19 workplace safety requirements. The state’s House of Delegates and Senate recently passed the Maryland Essential Workers’ Protection Act, and it is awaiting approval from Governor Larry Hogan (even if Governor Hogan vetoes the Act, the legislature has the votes to override any such veto).
Under the new Act, each essential employer* must take certain actions related to occupational safety and health during an emergency. The requirements cover, not just for the current and ongoing COVID-19 pandemic, but also for any situation in which extensive loss of life or serious disability is threatened imminently because of exposure to a deadly agent (e.g. anthrax, Ebola, radiation, or chemical or biological agent capable of causing extensive loss of life or serious disability).
* Essential employers under the Act are any persons or entities identified by the Governor or a federal agency as critical to remain in operation, who employ essential workers. Essential workers are those individuals who perform work during an emergency that cannot be performed remotely or are required to be completed at the work site, and that the employer determines to be essential or critical to its operation.
More specifically, during an emergency, essential employers must:
- Provide working conditions that comply with applicable safety standards by the relevant state or federal agencies;
- Provide necessary safety equipment recommended for usage during the emergency, at no cost to essential workers;
- Adopt, maintain, and post written protocols to ensure essential workers’ access to the applicable safety standards in effect;
- Take proactive steps to minimize the risk of transmission, including paying for testing for the communicable disease; and
- Report test results to the Maryland Department of Health, redacting any personal identifying information to protect the identity of the essential workers.
Essential employers will also be required to provide paid public health emergency leave, if the state or federal government provides funding that can be used for this purpose. Public health emergency leave will be allowed for essential workers to:
- Isolate if they have been diagnosed with, or are experiencing symptoms of, the communicable disease that is the subject of the emergency;
- Seek or obtain a medical diagnosis, preventative care, or treatment because they have been diagnosed with or are exhibiting symptoms of the communicable disease that is the subject of the emergency; or
- Care for a family member who is isolating because of a diagnosis or symptoms of the communicable disease that is the subject of the emergency.
This leave will be in addition to any other leave or benefit, including Earned Sick and Safe Leave (see here for a primer for employers to comply with the Maryland Sick and Safe Leave Act).
Essential employers will be allowed to ask essential workers who use public health emergency leave to provide documentation of the need to use the leave. The Act will not require essential employers to compensate essential workers for unused public health emergency leave when the essential worker leaves employment.
The Act also provides that each essential worker has the right to refuse to perform assigned tasks and may not be discharged or otherwise discriminated against for filing a complaint or exercising rights under the Act.
Given the veto-proof margin of the vote on the Act, Maryland employers should either develop and implement or modify and update their COVID-19 workplace safety policies now to be ready when the Act becomes law.