Maryland Healthy Working Families Act: A PSL-4Step Analysis

The Maryland General Assembly last month overrode Governor Larry Hogan’s veto of the Healthy Working Families Act. Since the HWFA is effective in a few days, on February 11, it seems fitting and proper, as lawyers are wont to say, to post my 4Step analysis of that law.

The law requires the Commissioner of Labor and Industry to develop and post on its website (https://www.dllr.state.md.us/paidleave/) a model poster, notice, and sick and safe leave policy and to provide technical assistance to employers. As of this writing, the model documents have not yet been posted. The Commissioner also “may” adopt regulations necessary to carry out the HWFA.

Here, I use the PSL-4Step framework to analyze the HWFA.

Step 1: Does it apply?

“Employer” includes state and local government units and “a person that acts directly or indirectly in the interest of another employer with an employee.”

“Employee” does not include an individual who

• performs work under a contract of hire that is determined not to be covered employment under Labor and Employment, Section 8-205;
• is not a covered employee under Labor and Employment, Section 9-222 (deals with real estate brokers and salespeople);
• is under the age of 18 years before the beginning of the year;
• is employed in the agriculture sector on an agricultural operation;
• is employed by a temporary staffing agency which does not have day to day control over the work assignments and supervision of the individual while providing the temporary staffing services; or
• is directly employed by an employment agency to provide part-time or temporary services to another person.

Also, the HWFA does not apply to an employee:

• who regularly works less than 12 hours a week for an employer;
• is in the construction industry but is not a janitor, a building cleaner, a building security officer, a concierge, a doorperson, a handyperson or a building superintendent and who is covered by a collective bargaining agreement in which the requirements of the HWFA law are expressly waived in clear and unambiguous terms;
• who is “called to work by the employer on an as-needed basis in a health or human services industry, [who] can reject or accept the shift offered by the employee, is not guaranteed to be called on to work by the employer and is not employed by a temporary staffing agency.”

Also, the law does not affect any bona fide collective bargaining agreement entered into before June 1, 2017 for the duration of the contract term, excluding any extensions, options to extend, or renewals of the term of the original agreement.

Finally, if a unit of state or local government’s sick leave accrual and use requirements meet or exceed leave under the HWFA, employees of that unit who are part of the unit’s personnel system are subject to the unit’s laws, regulations, policies, and procedures providing for accrual and use of leave, grievances and disciplinary actions. Any employees in such unit not covered by the unit’s sick leave and accrual and use requirements are subject to the HWFA.

Step 2: The Benefit

Maryland is Paid Sick Leave State Number Nine

Like the Maryland House of Delegates yesterday, the Maryland Senate today mustered the votes to override Governor Larry Hogan’s veto of the Healthy Working Families Act.  Twenty-nine votes were needed to override the veto. The override vote was 30-17. The law is effective in 30 days. Here is my post concerning yesterday’s vote. 

 

Maryland One Vote Away from Paid Sick Leave State Number Nine

The eyes of the PSL world today are on Maryland. The House of Delegates yesterday voted to override Governor Larry Hogan’s veto of the Healthy Working Families Act,. If the Senate also votes to override the Governor’s veto, Maryland will become the ninth state to enact a PSL law.

In the House of Delegates, to override a veto, at least 60% of the members of the House needed to vote to override. The House tally in favor of overriding the veto was 88-52, three more than needed to meet the 60% threshold. When the bill was passed initially last May, 87 House members had voted for the bill.

The Senate is expected to take up the override vote today, Friday. In that chamber, 29 votes are needed to override, the exact number of senators who voted for the bill in May.

The Healthy Working Families Act requires employers with 15 or more employees to provide up to five days of paid sick and safe leave to be used for reasons relating to the employee’s or family member’s illness, injury or condition; for maternity and paternity; and for absences related to domestic violence, sexual assault or staking committed against the employee or the employee’s family member. The Governor has described  this bill as a “deeply flawed, job-killing” bill.

The eight states with paid sick leave laws are Arizona, California, Connecticut, Massachusetts, Oregon, Rhode Island, Vermont, Washington.

Maryland May Become Paid Sick Leave State Number Nine

Maryland this week may become state number nine to enact a paid sick leave law. The legislature last May passed the Maryland Healthy Working Families Act but Governor Hogan vetoed it, favoring instead his own The Common Sense Paid Leave Act, which never came to a vote.

The vetoed bill requires employers with 15 or more employees to provide up to five days of paid sick leave which can be used for an itemized list of reasons.  The Common Sense Paid Leave Act would have required employers with 50 or more employees to provide employees up to forty hours of leave which employees may use for any reason. 

Governor Hogan recently proposed the Paid Leave Compromise Act, which would scale down the size of the employer required to provide paid leave from fifty employees in 2018, to forty employees in 2019, to 25 employees in 2020 and subsequently but allow employees to use accrued time for any reason.

Maryland can become state Number Nine by either overriding the Governor’s veto of the Maryland Healthy Working Families Act; accepting the Governor’s Compromise Act; or negotiating something in-between. The Healthy Working Families Act passed the legislature with sufficient votes to override the Governor’s veto but narrowly so.

Stay tuned. Regardless of the weather, the heat will be on in Annapolis this week.

A Week of Paid Sick Leave Vetoes

Maryland, Minnesota and now Nevada. Three paid sick leave-related vetoes within seven days.

On May 25, 2017, Maryland Governor Larry Hogan vetoed the PSL bill passed by the state General Assembly. Five days later, Minnesota Governor Mark Dayton vetoed the bill passed by the Minnesota legislature which would preempt municipalities from enacting a sick leave law, among other employment regulations. Then, on June 1, Nevada Governor Brian Sandoval vetoed the PSL bill passed by the legislatures.

My posts about the Maryland and Minnesota vetoes are here and here.

Governor Sandoval’s veto means that the wait for PSL State Number Eight continues. I had speculated previously that the stars seemed aligned for a PSL law in Rhode Island given that the governor is a Democrat, Democrats have overwhelming majorities in both the House and the Senate, and neighboring Connecticut and Massachusetts already have PSL laws.   However, the Rhode Island House bill remains in committee.

It has been seven months since any paid sick leave bill has passed anywhere in the country, although five PSL laws become effective July 1, 2017 (Arizona, Cook County, Chicago, Minneapolis and St. Paul).

Maryland Governor’s Paid Sick Leave Veto Calls Legislature’s Hand

As he had promised, Maryland Governor Larry Hogan vetoed what he referred to as the “deeply flawed, job-killing” paid sick leave bill passed by the General Assembly.

To override the Governor’s veto, 60% of each chamber must vote to do so. While each chamber had passed the bill with enough votes to override a veto, a change of heart by just one senator could doom the override effort. In the Senate, 29 votes are needed to override and 29 voted for the bill. In the House, 87 members voted for the bill; 85 are needed to override a veto.

An override vote cannot occur until the legislature convenes in January 2018.  That leaves many months for the executive and legislature to try to work out a compromise. The Governor prefers his “Commonsense Paid Leave Law” which, according to the statement from the Governor’s office, would “provide benefits that hardworking Marylanders deserve without hurting the state’s economy and costing jobs.” As I explained in my earlier post, the Governor’s bill goes where no leave law has gone before because it allows employees to accrue leave and use that leave for any reason. It would apply to employers with at least fifty employees while the Assembly bill applies to employers with at least fifteen employees.

When state legislative sessions convened earlier this year, I had speculated that Maryland could very well become State Number Eight to enact a paid sick leave bill. Alas, it was not to be.

Paid Sick Leave Showdown in Maryland

With the Maryland General Assembly adjourning in just five days, in the bottom of the ninth, so to speak, the Senate and House reconciled their PSL bills yesterday.

Next stop for the “enrolled” bill is Governor Hogan, who has already announced that the bill is “dead on arrival,” DOA.  I envision him standing in his office, receiving the bill in hand, a paper shredder to his side, eagerly looking to transform the bill into confetti. The Governor prefers his Commonsense Paid Leave Act, the one that goes where no PSL law has gone before. See here. The Governor’s bill seems to have been DOA in the General Assembly.

 Sixty percent of the votes in each chamber of the General Assembly are needed to overrule the Governor’s veto. If all of those who voted for the reconciled bill also vote to override the Governor’s veto, that formerly DOA PSL bill will rise from the dead and Maryland will become State Number Eight.

PSL just doesn’t get any more exciting than this, does it?

MD PSL DOA

Maryland Governor Larry Hogan announced earlier this week that if a PSL bill moving through the legislature were approved and sent to him for signature, it was “dead on arrival,” DOA. Prior to his pronouncement, the House of Delegates had passed a PSL bill by an 88-51 margin. Since his pronouncement, just yesterday, the Senate passed a PSL bill by a 29-18 margin.  The bills have some differences and need to be reconciled.

The Governor prefers his Commonsense Paid Leave Act, the one that goes where no PSL law has gone before. See here.

Assuming the House and Senate bills are reconciled, the issue is whether both chambers have the sixty percent of votes to override the Governor’s veto.  That’s 85 votes in the House and 29 in the Senate.  If those who voted for the original bill vote to override the Governor’s veto, that DOA PSL bill may rise from the dead.

As for the argument that common sense should prevail, recall the observation of French philosopher Rene Descartes: “Nothing is more fairly distributed than common sense: no one thinks he needs more of it than he already has.”

Stay tuned.

Maryland Governor’s “Common Sense” Leave Bill Goes Where No Leave Bill Has Gone Before

Of all the legislative debates concerning paid sick leave this legislative term, the debate in Maryland seems to have the most fury. Republican Governor Larry Hogan, likely sensing that the legislature, with large Democratic majorities in each chamber, might very well enact a PSL law this session, has offered his own proposal, The Common Sense Paid Leave Act. Who can possibly oppose a law based on common sense? Let’s take a closer look.

In the forty or so paid sick leave laws, ordinances and regulations that have been enacted nationwide, each itemizes the reasons for which an employee may use accrued leave.  Governor Hogan’s “common sense” bill dispenses with substantive limitation.  Employees may use accrued time “for any reason,” any at all. Its title does not include any connection to “sick.”  This absence is a bit surprising since a December 7, 2016 press release from the Governor’s office refers to the need to develop a “common sense approach to paid sick leave.” Indeed, the press release is titled: “Governor Larry Hogan Announces Common Sense Paid Sick Leave Legislation.”

Other PSL laws include a definition of “family member” because employees can use accrued time for reasons related to the health condition of a family member. The Governor’s bill does not define “family member” since the definition would be superfluous.  Also, other PSL laws require an employee to give the employer notice of the need to use accrued time. These requirements typically require advance notice for foreseeable use and notice “as soon as practicable” for unforeseeable use.  The Governor’s bill has no notice requirements.  An employee can merely report that he or she will not be in today because he or she decided to go to the O’s ballgame or because it is a beautiful day at the beach. The bill allows the Commissioner of Labor and Industry to adopt regulations and one would hope that this “common sense”notice requirement would be included in regulations.

I suspect, and this is pure speculation, otherwise known as a “fact-free” discussion, that the Governor eliminated all restrictions on use to gain support for his limiting the application of the bill to employers with at least 50 employees.  That may be good politics but referring to a bill that allows an employee to take accrued paid time off for any reason whatsoever as a “common sense” approach seems a bit much. Perhaps it should have been titled the “Star Trek Paid Leave Act” because it certainly goes where no paid leave bill has gone before.

 

Let the 2017 State Paid Sick Leave Wrangling Begin!

With a new calendar year comes a new legislative session, which brings new political wrangling about paid sick leave. Three states are in the PSL headlines: Maryland, Rhode Island and Alaska.

The Maryland Healthy Working Families Act, House Bill 1, was introduced on January 11, 2017. The bill’s introduction seems to be a rejection of the compromise bill Governor Larry Hogan intends to introduce, or perhaps it is merely an opening gambit. HB1 provides broader rights to employees than the governor’s proposal. It would require employers with at least 15 employees to allow employees to accrue up to 56 hours of paid time per year for sick and safe leave. The governor’s proposal would require employers with 50 or more employees to allow employees to accrue up to 40 hours of paid time annually.

In Rhode Island, more than 20 House Democrats have publicly declared their support for the “Fair Shot Agenda,” a four-part legislative package which includes paid sick days and an increase in the minimum wage, according to reports. The paid sick leave bill has not yet been introduced.

Alaska will consider a paid sick leave bill for the third time. House Bill No. 30 was filed on January 9, 2017. Beginning October 1, 2017, it would require employers with at least 15 employees to allow employees to accrue one hour of paid sick leave for every 40 hours worked.

Which of these states is likely to be the eighth PSL state? As I noted in Blue States, Red States and Paid Sick Leave Laws, six of the seven current PSL states were blue in the November election. Three—CA, MA, VT—were deep blue, giving Secretary Hillary Clinton more than 60% of the vote.

Last November, Maryland was deep blue (60% for Secretary Clinton); Rhode Island was blue (55% for Secretary Clinton); Alaska was red (51% for President-elect Donald Trump). Political prognostication is always risky, often wrong, as we learned in 2016, and beyond the scope of this blog. But let’s do an over/under anyway.