Maryland Joins a Number of States by Enacting a Paid Family and Medical Leave Law

Maryland recently became the tenth state to enact a paid family leave law – joining California, Colorado, Connecticut, Massachusetts, New Jersey, New York, Oregon, Rhode Island and Washington, as well as the District of Columbia and San Francisco.  Although the legislature passed the Maryland Time to Care Act of 2022 by a supermajority vote on March 31, 2022, Governor Hogan opposed the bill and vetoed it on April 8, 2022.  Just one day later, however, the legislature voted to override Governor Hogan’s veto by an overwhelming majority.  

Although the bill will be phased in over the course of the next two-and-a-half years, Maryland employers should pay close attention to the law and the regulations that the Maryland Department of Labor will be implementing within the next year.  To get ahead, employers should proactively make plans to revise their current leave policies and reach out to their HR and payroll providers to ensure that they are prepared to handle the necessary payroll tax contributions.

Effective Dates and Roll-Out of the Act

Similar to how the District of Columbia and other jurisdictions implemented their paid family leave laws, the law will be phased in over the course of several years.  Specifically, the Act establishes a Family and Medical Leave Insurance Fund that will require all employers with 15 or more employees, all employees, and all self-employed individuals that elect to participate in the program to make contributions a fund beginning October 1, 2023.  Notably, employers with less than 15 employees are not required to contribute to the fund, but employees of those small employers will still be required to contribute to the insurance fund.

The contribution rates will be set by the Maryland Secretary of Labor by June 1, 2023.  Covered employees will be eligible to claim and receive benefits approximately a year-and-a-half later on January 1, 2025.   The funding requirements and employer/employee contribution rates will also be periodically reviewed and subject to change based on bi-annual studies and recommendations by the Maryland Secretary of Labor.

Coverage and Qualifying Events under the Act

The Act defines “covered employer” broadly to any person or governmental authority that employs at least one individual in the state of Maryland.  However, there are certain limitations on who is eligible to claim benefits.  Covered individuals – i.e. employees eligible to claim benefits under the Act – are defined as employees who have worked at least 680 hours over the 12-month period immediately before the date that leave is to begin.

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Both Employees and Employers Benefit from Revisions to Washington, D.C. Paid Leave Law

Just two years after the enactment of Universal Paid Family Leave Act, it appears that thousands of private-sector employees in Washington, D.C. will receive a substantial increase in the annual amount of paid leave to which they are entitled. At the same time, D.C. employers will receive a significant tax cut to the amount they are required to pay to fund this program.Retro,Styled,Alarm,Clock,Covered,Pile,Of,Money,Isolated,On

The Universal Paid Family Leave Act, which took effect in July 2020, allows eligible D.C. employees to take up to (i) eight weeks for parental leave; (ii) six weeks for family medical leave; and (iii) six weeks for personal medical leave.  This program, which is funded through employer-paid taxes, has cost less than previously forecast and now has excess funds. 

As a result, in a letter sent last week to Mayor Muriel Bowser and D.C. Council Chairman Phil Mendelson, D.C.’s Acting Chief Financial Officer Fitzroy Lee stated that by as early as July 1, 2022, employees will now receive (i) twelve weeks for parental leave; (ii) twelve weeks for family medical leave; and (iii) twelve weeks for personal medical leave. In other words, eligible employees will now be able to take double the amount of paid leave for family medical leave and personal medical leave, and 66% more parental leave, than they currently receive. Eligible employees also will now be entitled to a new benefit of two weeks of paid prenatal leave, which was not previously available.

Employees will not be the sole beneficiary to the changes to the Universal Paid Family Leave Act.  Because of the excess funds currently available, the private employers who pay for this leave program will Continue reading

Paid COVID-19 Supplemental Sick Leave Returns to California, Again

California Governor Newsom has signed legislation extending a new allotment of up to 80 hours of COVID-19 supplemental paid sick leave to California workers through new Labor Code Sections 248.6 and 248.7.  The leave is retroactive to January 1, 2022, and continues through September 30, 2022.  Small businesses that employ 25 or fewer workers are not covered by the legislation.   

Use of Sick Leave for Reasons Related to COVID-19

The legislation provides for up to 40 hours of COVID-19 supplemental paid sick leave for employees who are unable to work or telework for certain reasons related to COVID-19, including:

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[Webinar] 2022 California Employment Law Update 

On Wednesday, Feb. 16, 2022 at 1 p.m. ET / 10 a.m. PT, join Andrew J. Sommer and Megan S. Shaked for a webinar regarding 2022 California Employment Law Updates: New Legal Requirements and Practical Compliance Strategies Every HR Professional and Manager Should Know.

2022 brings changes for California employers to a range of topics touching on traditional employment law matters as well as health and safety concerns, including related to COVID-19. This webinar will review compliance obligations for companies doing business in California, as well as discuss the practical impact of these new laws and best practices for avoiding potential employment-related claims.

Participants in this webinar will learn about: Continue reading

Conn Maciel Carey’s 2022 Labor and Employment Webinar Series

2022 LE Webinar Series

Announcing Conn Maciel Carey’s 2022 Labor and Employment Webinar Series

The legal landscape facing employers seems as difficult to navigate as it has ever been.  Keeping track of the ever-changing patchwork of federal, state and local laws governing the workplace may often seem like a full-time job whether you are a human resources professional, in-house attorney or  business owner.  Change appears to be the one constant.  As we enter Year 2 of President Biden’s Administration, employers will continue to closely track the changes taking place at the NLRB, the DOL and the EEOC.  At the same time, a number of states will continue introducing new laws and regulations governing workplaces across the country, making it more important than ever for employers to pay attention to the bills pending in the legislatures of the states where they operate.

​Conn Maciel Carey’s complimentary 2022 Labor and Employment Webinar Series, which includes monthly programs (sometimes more often, if events warrant) put on by attorneys in the firm’s national Labor and Employment Practice, will focus on a host of the most challenging and timely issues facing employers, examining past trends and looking ahead at the issues most likely to arise.

To register for an individual webinar in the series, click on the link in the program description below. To register for the entire 2022 series, click here to send us an email request, and we will register you.  If you missed any of our programs from the past seven years of our annual Labor and Employment Webinar Series, here is a link to an archive of recordings of those webinars. 

2022 Labor and Employment Webinar Series – Program Schedule

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Employment Law Implications of the OSHA ETS: Medical and Religious Accommodation Requests

Published in the Federal Register on November 5, 2021, the Federal OSHA Emergency Temporary Standard on Vaccination and Testing (“ETS”) first major compliance deadline was December 6, 2021. However, as a result of a stay entered by the 5th Circuit, and the 6th Circuit’s refusal to grant the Biden Administration’s petition to move up the briefing schedule, OSHA cannot begin enforcing, and has ceased all action, including answering employer questions about, the standard. (For continued updates on the status of the ETS review our Employer Defense Report and OSHA Defense Report.) Accommodation,Sign,With,Sky,BackgroundAs outlined in greater detail in a previous blog, the ETS generally requires employers with 100 or more employees to: develop employer policies on vaccination; provide paid time off for vaccination and to recover from vaccination; require employees to provide proof of full vaccination or submit to weekly testing; require unvaccinated workers to wear a face covering; remove COVID-19 positive cases from the workplace; and inform employees about the requirements of the ETS, COVID-19 vaccine efficacy and safety, prohibited retaliation, and the criminal penalties associated with knowingly supplying false statements or documentation. Given the robust requirements of the ETS, employers would be well advised to put in place mechanisms for compliance with the ETS in the event the stay is lifted, particularly if there is no delay in compliance deadlines. One important consideration is how to handle ETS-related medical and religious accommodation requests.

1. Background

Title I of the Americans with Disabilities Act of 1990 (ADA) requires employers to provide a reasonable accommodation, so long as it does not impose an “undue hardship,” to qualified employees who have a disability. A person with a disability has a physical or mental impairment that substantially limits one or more major life activities; has a record of such impairment; or is regarded as having such impairment. A qualified employee or applicant with a disability is a person who, with or without a reasonable accommodation, can perform the essential functions of the job. If an employee or applicant with a disability requests a reasonable accommodation, employers must engage in an interactive process. In doing so, EEO guidance permits employers to consider whether complications created by the COVID-19 pandemic create a “significant difficulty” in acquiring or providing certain accommodations. For example, it may be more difficult for an employer to provide an employee requesting an accommodation with a temporary re-assignment.

Title VII of the Civil Rights Act of 1964 (Title VII) prohibits employment discrimination on the basis of religion. Employers are required to provide a reasonable accommodation to employees with a “sincerely held” religious belief unless doing so would cause more than a minimal burden. In Draper v. U.S. Pipe & Foundry Co., the court held Continue reading

OSHA Issues Its COVID-19 Vaccination, Testing, and Face Coverings Emergency Temporary Standard

By Conn Maciel Carey LLP’s COVID-19 Task Force

At long last, OSHA has revealed its COVID-19 Vaccination and Testing emergency regulation.  The Federal Register site has updated to show the pre-publication package, which is set to run officially in the Federal Register tomorrow, November 5th.  The 490-page package includes the Preamble and economic analysis of the regulation, as well as the regulatory text.  The regulatory text begins on PDF page 473.  Also here is a Fact Sheet about the ETS issued simultaneously by the White House.

We are extremely pleased to report that the rule aligns very well with positions for which CMC’s Employers COVID-19 Prevention Coalition advocated to OSHA and OMB on the most significant topics, like the responsibility for the cost of COVID-19 testing and a delayed implementation date, as well as very narrow record-preservation requirements, grandfathering of prior vaccine-verification efforts, and other elements. OSHA and the White House clearly listened to our views and the compelling rational we put forward for these positions, making the rule a much better, more effective and less burdensome one for employers.

Conn Maciel Carey’s COVID-19 Task Force will be conducting a webinar about the ETS on Wednesday, November 10th at 1:00 PM ET.Here is a link to register for that program.

In the meantime, below is a detailed summary of the rule:

What is the stated purpose of the regulation?

The ETS is “intended to establish minimum vaccination, vaccination verification, face covering, and testing requirements to address the grave danger of COVID-19 in the workplace, and to preempt inconsistent state and local requirements relating to these issues, including requirements that ban or limit employers’ authority to require vaccination, face covering, or testing, regardless of the number of employees.”

Who is covered?

As the president signaled in his announcement and action plan from September 9, the ETS applies only to employers with 100 or more employees, and the rule does make it explicit that the way you count those employees is on a company–wide basis, not establishment-by-establishment.

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Status Update: Maryland Essential Workers’ Protection Act

Earlier this month, the Maryland Essential Workers’ Protection Act (“Act”) made it through both chambers by Sine Die and now awaits action by the Governor.  Above all, the bill would require the Maryland Secretary of Labor to establish COVID-19-specific safety regulations, also known as an “Emergency Temporary Standard” (“ETS”), within two weeks after the effective date of the Act.  This may take one of two forms:

  • if the federal Occupational Safety and Health Administration (“Fed OSHA”) has issued an applicable ETS related to COVID–19, that ETS must be adopted (see our previous post regarding the status of Fed OSHA’s COVID-19 ETS rulemaking); or
  • if Fed OSHA has not issued an applicable ETS related to COVID–19, a State ETS must be adopted that:
    1. meets or exceeds the guidance provided in “Guidance on Mitigating and Preventing the Spread of COVID–19 in the Workplace” published on January 29, 2021, by Fed OSHA; and
    2. complies with certain additional criteria, requiring employers to:
      • notify the Maryland Department of Health within 24 hours after the confirmation of a positive case of COVID–19;
      • notify the Maryland Department of Health within 24 hours after the confirmation of three or more employees at a workplace testing positive for COVID–19 within a 14–day period;
      • post in a location visible to employees at the work site: information regarding COVID–19 symptoms; protocols for an employee’s reaction to experiencing COVID–19 symptoms; the minimum safety standards developed under the regulations; and the process for submitting a complaint to Maryland Occupational Safety and Health; and
      • comply with the prohibitions relating to terminating or discriminating against employees.

Importantly, the bill provides that “[t]his subtitle applies only 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[,]” where “emergency” is defined as “[a] catastrophic health emergency, as defined [under a certain section of the Public Safety Article], that is the subject of an Executive Proclamation . . . and is related to a communicable disease.”  The bill also offers a two-part definition for “essential employer,” providing that an “essential employer” means a “person that employs an essential worker” and that an “essential worker” means “an individual who: (1) performs a duty or work responsibility during an emergency that cannot be performed remotely or is required to be completed at the work site; and (2) provides services that the essential employer determines to be essential or critical to its operations.”  Essential employers may not “knowingly misclassify an essential worker as an independent contractor or other classification in order to avoid paying an essential worker any benefits due during an emergency . . .”    

Key safety and health requirements for covered employers include, but are not limited to, the following:

  • Subject to availability, provide necessary amounts of safety equipment recommended for usage during the emergency at no cost to essential workers.
  • Adopt, maintain, and post written protocols to ensure an essential worker’s access to information regarding the applicable safety standards in effect during the emergency.
  • Provide or implement any other measures or requirements set by the Governor or a Federal or State agency to ensure the general health and safety of essential workers.
  • During an emergency, if an essential worker or any other workers has contracted the communicable disease that is the subject of the emergency at the work site, take proactive steps to minimize the risk of transmission, including informing essential worker that they may have been exposed.
  • Unless an essential workers is able to obtain testing free of charge, if an essential worker’s health insurance coverage or other benefits do not cover the cost of testing for the communicable disease that is the subject of the emergency, during the emergency, pay for testing for the communicable disease.
  • Report all positive test results to the Maryland Department of Health, and, when reporting, include demographic information about the essential worker and redact any personal identifying information to protect the identity of the essential worker.

Additionally, the bill provides that essential workers have the “right to refuse to perform an assigned task under [a certain section of this article and corollary regulations].” 

The bill also sets forth requirements for “public health emergency leave,” defined as “paid leave that an essential employer provides to an essential worker during an emergency as required under [a certain subsection of this section].”  The public health emergency leave section only applies, however, if the Federal or State government provides funding that can be used for public health emergency leave.  Should such funding become available, essential employers must provide an essential worker with public health emergency leave on the date the funding is made available to the essential employer.  The bill sets forth the specific conditions under which public health emergency leave may be taken, as well as the amounts of leave to which covered workers are entitles and documentation requirements. 

With respect to the conditions under which public health emergency leave may be taken, the bill provides that each essential employer must allow an essential worker to use public health emergency leave in relation to an emergency:

  • 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 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 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 presence at the place of employment or in the community would jeopardize the heath of other individuals because of the essential worker’s exposure to, or exhibited symptoms associated with, the communicable disease that is the subject of the emergency, regardless of whether the essential worker has been diagnosed with the communicable disease.
  • To care for a family member due to a determination by a public health official or health care professional that the family member’s presence at the place of employment or in the community would jeopardize the heath of other individuals because of the family member’s exposure to, or exhibited symptoms associated with, the communicable disease that is the subject of the emergency or due to symptoms exhibited regardless of whether the family member has been diagnosed with the communicable disease.
  • To care for a child or other family member: when the care provider of the family member is unavailable due to the emergency; or 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 bill provides a specific definition for “family member,” which includes: biological children, adopted children, foster children, and stepchildren of the essential worker; biological parents, adoptive parents, foster parents, and stepparents of the essential worker or of the essential worker’s spouse; the spouse of the essential worker; biological grandparents, adopted grandparents, foster grandparents, and stepgrandparents of the essential worker; biological grandchildren, adopted grandchildren, foster grandchildren, and stepgrandchildren of the essential worker; biological siblings, adopted siblings, foster siblings, and stepsiblings of the essential worker; among others

If an essential worker believes that an essential employer has committed violations, the bill provides specific methods of recourse for the worker.  It also prohibits employers from discharging or otherwise discriminating against an employee because the employee is an essential worker who files a compliant or exercises a right under certain provisions of the law. 

Return of California’s COVID-19 Supplemental Paid Sick Leave

By Andrew J. Sommer and Ashley D. Mitchell

California has just reinstated the COVID-19 specific paid sick leave law that expired at the end of 2020 but this time with a twist.  As we discussed in a blog post last year, California enacted the 2020 COVID-19 Supplemental Paid Sick Leave law to extend benefits to employees not covered by the paid benefits provision of the Families First Coronavirus Response Act (FFCRA).  While the FFCRA’s paid sick leave provision lapsed on December 31, 2020 along with California’s 2020 COVID-19 Supplemental Paid Sick Leave law, California has just passed, effective March 29, 2021, the 2021 COVID-19 Supplemental Paid Sick Leave law extending benefits again with significantly expanded eligibility.

Eligibility Requirements

The 2021 COVID-19 Supplemental Paid Sick Leave law requires all California employers with more than 25 employees to provide COVID-19 related paid sick leave (up to 80 hours) to employees who cannot work or telework due to the reasons discussed below.  This paid leave is in addition to any payment that was provided under the previous COVID-19 Supplemental Paid Sick Leave law expiring on December 31, 2020.  The 2021 COVID-19 Supplemental Paid Sick Leave law does not apply to independent contractors, unlike the previous law, and expands upon the eligibility criteria.  The California Department of Industrial Relations (DIR) has issued 2021 COVID-19 Supplemental Paid Sick Leave FAQs offering detailed guidance on this new law.

Covered employees are now eligible under the 2021 COVID-19 Supplemental Paid Sick Leave law if they are unable to work or telework due to any of the following reasons: 

  • The covered employee is subject to a quarantine or isolation period related to COVID-19, as defined by an order or guidelines of the State Department of Public Health, the federal Centers for Disease Control and Prevention, or a local health officer who has jurisdiction over the workplace
  • The covered employee has been advised by a healthcare provider to quarantine due to COVID-19, or is experiencing symptoms of COVID-19 and is seeking a medical diagnosis
  • The covered employee is caring for a family member (as defined) who is either subject to a quarantine or isolation period or has been advised by a healthcare provider to quarantine due to COVID-19
  • The covered employee is caring for a child whose school or place of care is closed or unavailable due to COVID-19 on the premises
  • The covered employee is attending a vaccine appointment or cannot work or telework due to vaccine-related symptoms
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Employment Law Update in D.C., Maryland, Virginia, and Illinois [Webinar Recording]

On March 24th, Daniel C. Deacon and Ashley D. Mitchell presented a webinar regarding an Employment Law Update in D.C., Maryland, Virginia, and Illinois.

CaptureThe District of Columbia, Maryland, and Virginia have enacted or are considering a host of changes that employers need to keep track of in 2021, such as revisions to discrimination laws, wage and hour laws, labor laws, and workplace safety and health regulations.

Illinois employers should be aware of an already existing minimum wage increase that takes effect in 2021, and there are a host of laws that took effect at various points in 2020. Indeed, in 2020, employers were faced with an expanded Illinois Human Rights Act that applies beyond the physical workplace, covers non-employee contractors and protects against discrimination based on perceived (in addition to actual) protected status. There were also special new rules enacted that apply to restaurants, bars and coffee shops, as well as disclosure requirements that will necessitate notifying the Department of Human Rights of adverse judgments in employment discrimination or harassment matters. Finally, the Victims’ Economic Security and Safety Act was amended and the signed “trailer bill” has clarified what employers should do if they wish to prohibit the use of marijuana as part of their workplace drug and alcohol policy.

Participants in this webinar learned: Continue reading