Is Maryland Going to be the Next State to Enact COVID-19 Workplace Standards?

Josh SchmandJosh Schmand

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.

For more information, contact Josh at 301-347-1273 or jcschmand@lerchearly.com.

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.

Families First Coronavirus Response Act Tax Credit Extension in 2021

Employment/Labor GroupEmployment/Labor Group

The Families First Coronavirus Response Act (FFCRA) sunsetted on December 31, 2020, but some provisions remain active.

On Sunday, December 27, 2020, former President Donald Trump signed a bipartisan pandemic relief bill into law. Because the leave provisions of the FFCRA were not extended employers were no longer required to provide leave under the FFCRA in 2021.

However, as part of this relief package the tax credit for FFCRA leave, which reimburses employers for FFCRA leave taken by employees, was extended through March 31, 2021. Therefore employers who voluntarily choose to provide employees with FFCRA leave may do so until March 31, 2021 and receive tax credit for the leave. Of course, employers may instead choose to adopt their own policies to grant paid or unpaid leave for COVID-related purposes or simply allow employees to use their existing leave.

If employers do choose to provide FFCRA through March 31, 2021 they should be aware that employees are not granted FFCRA leave in addition to what they received in 2020. Thus if an employee has exhausted 80 hours of paid sick leave and 12 weeks of expanded family medical leave in 2020 they will not receive additional leave in 2021. Moreover, there are no changes to eligibility, purposes of leave, caps on usage, or documentation requirements.

Lastly, state or local laws may impose additional requirements for COVID-19 related leave and employers are advised to ensure that they act in compliance with any applicable laws.

For more information, contact one of our employment attorneys.

Are DMV Employers Required to Give Employees Time Off to Vote? It Depends.

Josh SchmandJosh Schmand

With Election Day around the corner on November 3, 2020, and early voting ongoing, employees may need time off from work to vote.

Federal law does not require employers to give employees time off from work to vote, but the local jurisdictions have varying voting leave requirements. Here’s what employers need to know about giving employees time off to vote in D.C., Maryland, and Virginia:

Time Off to Vote in D.C.

On April 27, 2020, the District of Columbia enacted the Leave to Vote Amendment Act of 2020, which went into effect on October 1, 2020, just in time for the 2020 election season. The Act gives all D.C. employees the right to at least two hours of paid leave off to vote.

This means that paid voting leave is only available to employees who are voting in person. The leave can be used for either an election held in the District if the employee is eligible to vote in the District or in an election held in the jurisdiction (such as Maryland or Virginia) in which the employee is eligible to vote.

Employers may ask employees to submit the request for paid leave a reasonable time in advance of the date the employee plans to vote and to specify the hours during which employees can take paid leave to vote, including requiring employees to vote early instead of on Election Day or to vote at the beginning or the end of a shift. Employers may not interfere with, restrain, or deny any attempt employees make to take paid leave to vote under the Leave to Vote Act or retaliate against employees for taking paid leave to vote.

The Leave to Vote Act requires employers to post notice of the voting leave requirements in a conspicuous location and on their websites. A notice suitable for posting in the workplace can be found here.

Voting Leave in Maryland

Every employer in Maryland must allow employees at least two hours of paid leave off to vote on Election Day in order to cast a ballot. Like in D.C., this means that paid voting leave is only available to employees who are voting in person.

All employees in Maryland are eligible for paid voting leave if they claim to be registered voters in Maryland and if they do not have two hours of continuous off-duty time during the time that the polls are open. Employees are not eligible for paid voting leave if they have two consecutive nonworking hours while the polls are open.

Employers may require that employees provide written proof that they voted or attempted to vote. The paid voting leave law does not specify whether employers may designate the hours during which employees may take paid leave to vote. The law also does not specify any obligations for employers to inform employees of their right to paid voting leave.

Election Officer Leave in Virginia

Virginia does not have voting leave laws requiring time off (paid or unpaid) for employees to vote.

However, Virginia employers should be aware that they are obligated to provide election officer leave. An election officer is a person appointed by an electoral board to serve at a polling place for any election.

Requests for election officer leave must be made reasonably in advance of Election Day, and the leave does not need to be paid. Employees that serve four or more hours (including travel time) as election officers on Election Day cannot be required to start a shift on or after 5 p.m. that day or before 3 a.m. the day after service.

Voting Leave Policies

The voting leave requirements outlined above are the minimums required by applicable laws, and employers, even those in Virginia, can always amend their policies to provide additional paid voting leave as necessary. Employers should review all requests for voting leave consistent with established policies and applicable laws.

At a minimum, employers should review and modify their leave policies now to ensure compliance with the amended D.C. Leave to Vote Act and to provide employees with their required voting leave.

For more information, contact Josh at 301-347-1273 or jcschmand@lerchearly.com.