As Maryland employers continue to navigate the effects of the COVID-19 pandemic, the Maryland General Assembly passed several new bills this session that were recently signed into law, to take effect on October 1, 2021. These laws clarify and alter existing laws from 2020 and create new requirements for employers. These new laws include requirements for layoffs, bereavement leave, protections for essential workers, discrimination charge deadline extensions, and expansion of prevailing wage law.
I. Economic Stabilization Act
As you will recall from our article last year, in 2020, the Maryland General Assembly made significant changes to Economic Stabilization Act, including making mandatory a 60-day advance written notice of covered reductions in operation by employers with 50 or more employees. In an effort to conform Maryland’s law to the federal law, various additional changes have now been made by new legislation.
The Act still mandates 60-day advance written notice of covered reductions in operation by employers with 50 or more employees. Previously, employers subject to this legislation included those with 50 or more employees in the state; now, the new legislation requires that employers with 50 or more employees anywhere provide the notice. Covered reductions in operation include:
- the relocation of a part of an employer’s operation from one workplace to another, that may reduce the total number of employees at the initial workplace by at least 25% or 15 employees, whichever is greater; or,
- the shutting down of a workplace or a portion of its operations that reduces the total number of employees by the greater of at least 25% or 15 employees over any 3-month period.
Notice must be given to:
- All employees at the workplace that are subject to the reduction in operations, including those working on average less than 20 hours a week and those who have worked less than 6 months during the prior 12-month period;
- Any representative or bargaining agency representing those employees;
- The Division’s dislocated worker unit; and
- The chief elected official in the jurisdiction of the political subdivision where the affected workplace is located. If the workplace is in more than one jurisdiction, then notice is given to the chief elected official in the jurisdiction where the employer paid the most taxes in the preceding fiscal year.
The required notice must include:
- The name and address of the affected workplace;
- A company official’s name, telephone number and email address to contact for further information;
- A statement explaining whether the reduction in operations is expected to be temporary or permanent, and if the workplace is expected to shut down; and
- The expected date the reduction in operations will begin.
Notably, new to this legislation, an employer need not provide 60 days’ notice if:
- It was actively seeking capital or business that would have enabled the employer to avoid or postpone the reduction, and it believed that providing such notice would have precluded it from obtaining the capital or business; or
- The reduction in operations was due to a natural disaster (i.e., flood, earthquake, or drought).
An employer that relies on one of these exceptions shall still provide notice as soon as practicable with a brief statement of the basis for not providing written notice at least 60 days before initiating a reduction in operations.
There are still substantial civil penalties of up to $10,000 per day for failure to comply with the mandatory notice requirement.
II. Maryland Flexible Leave Act
This new bill expands Maryland’s Flexible Leave Act (“MFLA”), by authorizing employees to use paid leave for bereavement leave for the death of the employee’s immediate family member.
Covered employers include private sector employers with 15 or more employees.
Paid leave is defined as “paid time away from work that is earned and available to an employee based on hours worked” or granted annually in a fixed amount, and includes sick and vacation leave, paid time off, personal leave, and compensatory time.” Employees who earn more than one type of paid leave from their employers may elect the type and amount of paid leave to be used in caring for their immediate family members.
Immediate Family Member includes a child, spouse, or parent, with an illness. For purposes of taking leave to care for a family member under the Act, “child” is defined as an (1) adopted, biological, or foster child; (2) stepchild; or (3) legal ward who is either younger than 18 or at least 18 years old and incapable of self-care due to a mental or physical disability (for bereavement leave only, the bill expands this to include all adult children).
The employer cannot take any adverse action against an employee who has used or requested such leave, opposed any unlawful practice, reported a violation, or participated in a proceeding under this law. If you are a covered employer that provides paid time off, be sure to update your employment policies to allow this time off to be used for bereavement leave. Some employers may already provide their employees with bereavement leave as a part of their employment policies. Please note that in this case, employees may now use accrued paid time off for bereavement leave in addition to any bereavement leave you already provide.
III. Essential Workers Protection Act
The pandemic has certainly highlighted various obstacles for essential employees and their employers alike. During this session, Maryland joined other states including Virginia and New York in enacting a COVID-19 workplace safety law: the Essential Workers Protection Act (“EWPA”). The EWPA outlines actions certain employers must take while a state of emergency is declared due to a “catastrophic health emergency” related to a communicable disease.
Emergency means a catastrophic health emergency, as defined in current law, that is the subject of an executive proclamation and is related to a communicable disease.
Essential worker means an individual who performs a duty or work responsibility during an emergency that cannot be performed remotely or is required to be completed at the worksite and provides services that the essential employer determines to be essential or critical to its operations.
Essential employer means an employer that employs an essential worker and includes units of state or local government. The bill applies to 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. Currently, it seems this would apply to those identified in by Order of the Governor of the State of Maryland, Number 20-03-23-01, dated March 23, 2020. However, further guidance from the state is required to determine whether this suffices as identification under the EWPA.
In summary, the EWPA establishes the following rights, benefits, responsibilities, and obligations related to essential workers, essential employers, and catastrophic health emergencies:
- An essential employer must provide safe working conditions during an emergency and, subject to availability, necessary amounts of safety equipment at no cost to essential workers.
- An essential employee has a right to refuse to perform an assigned task.
- An essential employer must take proactive steps to minimize the risk of transmission of the communicable disease that is the subject of the emergency, including paying for an essential employee to be tested for the disease under certain circumstances.
- An essential employer must provide an essential worker with public health emergency leave when federal or state funding is made available for that purpose, calculated based on an employee’s average working hours. More specifically, the EWPA provides up to 112 hours of paid public health emergency leave per essential worker, in addition to any existing paid leave, if there is federal or state funding for such leave. Each essential employer must allow an essential worker to use public health emergency leave for specified purposes, including (1) to isolate without an order to do so because the essential worker has been diagnosed with the communicable disease that is the subject of the emergency or is experiencing associated symptoms; (2) to care for a family member who is isolating for the same reason; or (3) for related and specified public health and safety reasons.
- An essential employer may not knowingly misclassify an essential worker as an independent contractor or other classification to avoid any other benefits due to an essential worker during an emergency.
The EWPA further directs Maryland’s Secretary of Labor, within 2 weeks after it goes into effect, to either (1) adopt the Emergency Temporary Standard related to COVID-19 issued by the federal Occupational Safety and Health Administration (OSHA) or (2) if OSHA has not issued a standard, adopt a State Emergency Temporary Standard that meets specified requirements. OSHA released its Emergency Temporary Standard of June 10, 2021, and thus likely will be adopted by the state.
IV. Time for Filing Discrimination Complaints in Maryland
This bill increases the time for filing a complaint with the Maryland Commission on Civil Rights (MCCR) that alleges an unlawful employment practice other than harassment. Currently, employees, interns, and independent contractors have six months to file such a complaint. Effective October 1, 2021, a complaint must be filed within 300 days after the date on which the alleged discriminatory act occurred. This conforms the state law to the federal law. Note that employees still have two (2) years to file claims of harassment with the MCCR.
V. Prevailing Wage Law Expanded
This bill expands the applicability of the state’s prevailing wage law to include (1) a public work project contract with a value of $250,000 or more (instead of $500,000 or more, under current law) and (2) a public work project for which state funds constitute at least 25% of the construction costs (instead of at least 50% of construction costs, under current law). Legislative bond initiatives that receive state funds in the capital budget are exempt from the bill’s requirements. The bill only applies to a public work project contract executed on or after October 1, 2021.
Melissa Calhoon Jones is chair of the labor and employment group. For more information about this regulation and other employment concerns, please contact her.
This information has been prepared by Tydings for informational purposes only and does not constitute legal advice.