Novel Legislation: Maryland’s Disclosing Sexual Harassment in the Workplace Act of 2018

harassmentWith the rise of the #MeToo movement, there have been a number of responses from both employers and state legislatures to address workplace harassment.  As discussed during the EEOC Special Task Force Meeting on June 11, 2018, several state legislatures are taking proactive steps to combat workplace sexual harassment.  For example, on May 15, 2018, Maryland Governor Larry Hogan signed and ratified the Maryland Disclosing Sexual Harassment in the Workplace Act of 2018 – which passed the Maryland House (46-0) and Senate (136-1) with almost unanimous support.

The Act, which goes into effect on Continue reading

Maryland Employers Beware — Paid Sick Leave is Quickly Approaching

On January 12, 2018, the Maryland General Assembly overrode Gov. Larry Hogan’s veto to pass the Maryland Healthy Working Families Act (the “Act”), and in so doing, Maryland became the ninth state in the country to require paid sick and safe leave for qualifying employees. shutterstock_fever sick

Pursuant to the Act, any business in Maryland with 15 or more employees during the preceding year, including part-time, full-time, temporary, and seasonal workers, must provide their workforce with paid sick leave.  Maryland employers with 14 or fewer employees are also required, at a minimum, to provide employees with unpaid sick and safe leave.

The Act currently is scheduled to take effect as of February 12, 2018.  However, on January 23, 2018, as a result of concerns expressed by various lawmakers that employers would not have a sufficient amount of time to come into compliance with various provisions of the Act, Senator Thomas Middleton, the chief sponsor of the law, introduced a bill that would delay enforcing requirements of the law until mid-April.  Senator Middleton stated that the delay in enforcement would give labor officials the requisite time to draw up necessary regulations and to spread the word to companies that are affected.  He also emphasized that he wanted to “hold harmless” companies that are figuring out the details of how to set up their sick leave programs, and that “ninety days should give the administration enough time to get a guide together.”

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EEOC and State Legislatures Focus on Pay Equity and Transparency

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If there is one issue that has remained a hot topic in employment news throughout 2016, it is pay equity and transparency.  These topics have not only garnered attention at the federal level but at the state level as well.

The EEOC proposed significant changes to the EEO-1 report, a mandated compliance survey containing employment data, where it will begin collecting pay data based on certain demographic criteria in 2017.  Additionally, many states, including Maryland, are taking their own steps to ensure pay equity in the workplace.  These laws will likely trigger significant enforcement efforts by federal agencies and the states; thus, employers should be prepared to respond to investigations into their pay practices.  However, employers can take several steps to help limit potential liability over the next year.

New EEO-1 Report Requirements

In February 2016, the EEOC announced a major revision to the Employer Information Report (EEO-1) requiring all employers with more than Continue reading

Paid Sick Leave Set to Become Effective in Montgomery County, Maryland

health-care-costs-2In 2015, Montgomery County implemented Maryland’s first paid sick and safe leave statute, The Earned Sick and Safe Leave Law, which becomes effective on October 1, 2016.  The law applies to all employees that perform work in Montgomery County.  Under the law, employees who work for employers with 5 or more employees earn sick and safe leave at a rate of one hour for every 30 hours of work in Montgomery County, up to 56 hours or approximately 7 days of leave per calendar year.  Employees who work for employers with fewer than 5 employees must earn one hour for every 30 hours worked in Montgomery County, but only up to 32 hours or approximately 4.5 days per calendar year.

As has been seen in similar paid leave laws developing throughout the country, under Montgomery County’s statute leave can be used for (1) medical care of employee or employee’s family member; (2) closure of employer’s place of business or school/child care by order of a public official due to public health emergency; (3) care of a family member with a communicable disease that could jeopardize the health of others; or (4) obtaining medical or legal services for or participation in a proceeding related to domestic violence, sexual assault or stalking committed against the employee or the employee’s family member.

Similar to DC’s paid sick and safe leave law, employees must begin accruing leave on their first date of employment, but may be prohibited from using the leave during the 90-day initial probationary period.  Employers must permit leave to be carried over from year to year (up to 56 hours), but can cap use of accrued and carried-over leave to 80 hours per calendar year.  The law also requires employers to provide a written statement of available sick and safe leave to employees each time wages are paid.

Pursuant to this law, an employer must notify employees of their entitlement to leave by posting and in its written policies, usually the employee handbook.  Although this may require some employers to implement a new policy, many employers may already have policies that meet these basic requirements.  A general PTO policy that permits accrual of paid leave at the same or a greater rate and use of the paid leave for any reason, may simply need to be updated to encompass all of the permitted uses of leave, an anti-retaliation statement, and information about the employee’s rights to file a complaint.  Employers also should ensure accrual is not prohibited.  Policies must be carefully reviewed and revised, if necessary, to meet the qualifications of this law by or before October 1st.

This shift in the law is especially significant because of what it reflects for Maryland as a whole.  Maryland’s Healthy Working Families Act has gained renewed momentum in light of Montgomery County’s law and a similar law currently being considered in Prince George’s County.  The Act would similarly provide full-time employees up to 7 days of paid sick and safe leave and would, as it’s currently written, apply to all employers with 10 or more employees.  Employers with 9 or fewer employees would have to provide unpaid leave.  Although this proposed law has been introduced and reintroduced multiple times without success, there may be enough support in the state to push it through the Maryland government based on the implementation of one such law within the state already.

Medical Marijuana and an Employer’s Rights in DC, Maryland, and Virginia

The District of Columbia, Maryland, and Virginia have all taken steps toward legalizing
marijuana in some form.  However, these laws differ in many respects and raise
some interesting questions for employers.  Because medical marijuana continues to be illegal under federal law, pursuant to the Controlled Substances Act, courts residing in jurisdictions where the use of medical marijuana is legal have found that an employer may maintain a drug-free workplace dreamstime_l_41623799 (1)and terminate an employee for failing a drug test.

While some states such as Arizona specifically provide protections for employees that have a valid prescription for medical marijuana, neither the District of Columbia, Maryland nor Virginia have such specific protections in their respective statutes.  The lingering questions is whether an employer’s decision to take an adverse action against an employee for using medical marijuana is protected under the Americans with Disabilities Act (“ADA”) or a state’s disability discrimination statute, or under public policy.  To date, however, courts have ruled that, absent statutory protections, employers remain free to set their own drug policies and to discipline or terminate employees who violate those policies.

This article details the medical marijuana laws in the District of Columbia, Maryland, and Virginia, and addresses the current legal landscape regarding an employee’s use of medical marijuana and employment law.  Employers should evaluate their current drug policies, and continue to monitor the changing landscape surrounding the use of medical marijuana.  As some states do provide specific protections for employee’s use of Continue reading