Montgomery County, MD Paid Sick Leave Anticipation Becomes Reality!     

A recent article commenting on the impact of NYC’s paid sick leave law noted that paid sick leave policies lead to happier workers and more productive offices as well as fewer flu outbreaks.  Assuming those conclusions are valid, come next week, Montgomery County, MD employees will be happier and their workplaces will be more productive.

More than fifteen months after Montgomery County enacted its Earned Sick and Safe Leave Law, the law finally goes into effect October 1, 2016. The County of Montgomery consists of 19 municipalities, has about one million people within its borders and is a Washington D.C. suburb. It is the first and only county in the nation to pass a paid sick leave law.

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The Montgomery County ESSL applies to employers who operate and do business in the county and employ at least one person in the county other than the owners. Eligible employees regularly work at least 8 hours weekly in the County. The ESSL follows the rhythm of many paid sick leave laws that have preceded it. The core benefit provisions include:

  • Employees begin to accrue leave on the first day of employment at the rate of one hour for every 30 hours worked in the County.


  • Employees may use accrued time after 90 days of employment and can use up to 80 hours in a designated 12 month period.


  • Employers with at least five employees can cap ESSL accrual at 56 hours per 12 month period. Smaller employers can cap the paid ESSL at 32 hours and also provide 24 hours of unpaid ESSL.


  • An employee can carryover up to 56 hours of unused earned ESSL unless an employer frontloads the full amount of ESSL. Then, there is no carryover.


  • ESSL may be used for the employee’s illness, injury or medical condition or to care for a family member (very broadly defined) with an illness, injury or medical condition; preventative care for the employee or family member; when employer’s business or school or child care center of employee’s child is closed by order of a public official due to a public health emergency; to care for a family member’s whose presence in the community would jeopardize the health of others because of family member’s exposure to a communicable disease; and domestic violence, sexual assault or stalking against the employee or family member provided this time is used for specified purposes.


  • If an employer already provides the amount of ESSL required by the law and it can be used for reasons specified in the law, an employee need not provide additional time off to comply with the law.


The law also has the usual provisions relating to the administration of ESSL:

  • An employer cannot require an employee to search or find a replacement as a condition of the employee’s using leave under the statute.


  • An employer cannot require an employee to provide the details of the illness, injury or medical condition for which leave is taken.


  • An employer may require an employee who uses “more than three consecutive days” of ESSL to provide reasonable documentation to support the need for such use.


  • With the employer’s consent, employees may trade shifts or the employee who uses ESSL may work additional hours that workweek.


  • An employer may require employees to use a minimum increment of ESSL, the increment being the smallest unit the payroll system uses to account for absences but no more than four hours.


  • An employer need not pay an employee unused earned ESSL upon termination.


  • Exempt employees are presumed to work forty hours in a week for ESSL purposes.


  • Employers must tell employees about their ESSL rights. Employers have options to accomplish this, one of which is to post the notice prepared by Montgomery County, available here. Employers must also provide a written statement of available ESSL with each wage statement, unless such information is available to employees via an online system.


  • An employee must request leave “as soon as practicable” after determining that leave is needed notify the employer of the anticipated length of leave and comply with the employer’s reasonable procedures for requesting and taking leave.


  • An employer may not discriminate or retaliate against employees who exercise rights under the ESSL.


  • The County Office of Human Rights will be enforcing the law.


As noted in a previous post, Berkeley’s Paid Sick Leave Ordinance goes into effect October 1, 2016 as well.