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Legal Update for Employers in DC, MD, VA

2009-06-15

We are providing this summary of recent laws to help you stay on top of your state obligations.

District of Columbia

District of Columbia Accrued Sick and Safe Leave Act (ASSLA) - The Act, effective November 13, 2008 and administered by the DC's Department of Employment Services, requires employers to provide employees with three to seven days (depending on the employer size) of paid sick leave for absences due to the employee or family member's medical condition, domestic violence or sexual abuse.  Under the Act, independent contractors, certain student workers, certain health care workers, and restaurant wait staff and bartenders who receive a combination of tips and wages are not defined as "employees".

The number of paid sick days that the employer is required to provide is based on the following:

  • Employers with 100 or more employees - at least 1 hour of paid leave for every 37 hours worked by the employee, up to a maximum of seven days per calendar year.
  • Employers with 25-99 employees - at least 1 hour of paid leave for every 43 hours worked, up to a maximimu of five days per calendar year.
  • Employers with 24 or fewer employees - at least 1 hour of paid leave for every 87 hours worked, up to a maximum of three days per calendar year.

Covered absences include:

  • Employee's own physical or mental illness, injury or medical condition,
  • Employee's own professional medical diagnosis or care or preventive medical care,
  • Employee's care of a child, parent, spouse, domestic partner, or any other family member's illness, injury, medical condition, diagnosis or preventive medical care,
  • Certain absences directly relating to social or legal services resulting from stalking, domestic violence or sexual abuse of the employee or the employee's family member.

Leave is accrued upon employment and can be accessed after 90 days.  The Act also allows that unused paid leave accrue during a 12-month period to be carried over annually but the employee cannot use  more than the maximum unless allowable by the employer.  Accrued sick leave is not reimbursable upon termination.

The Act requires that employers post a notice addressing pertinent provisions of the ASSLA.  Willful violations of the law are subject to fine of $500 for the 1st offense, $750 for the 2nd offense, and $1000 for the 3rd and any subsequent offenses.  Failure to post the notice may result in penalties up to $500.

Child's Right to Nurse Human Rights Amendment Act of 2007 - amends the DC Human Rights Act and gives women the right to breastfeed anywhere they have the right to be with their children, regardless of whether that location is public or privte.  Employers are required to provide reasonable daily unpaid break periods and a sanitary location for breastfeeding mothers to express milk.  The Act prohibits discrimination against breastfeeding women, including it as a form of "discrimination on the basis of sex."

Maryland

Flexible Leave Act Amendments - The Act, effective October 1, 2008, allows employees to use leave with pay for the illness of the employee's child, spouse or parent.  During the 2009 session, the general assembly clarified the definition of leave with pay.  The revisions provide that "leave with pay" covers "paid time away from work that is earned and available to an employee based on hours worked or an annal grant of a fixe number of hours or days of leave for performance of service."  Also added isa subsection that  provides "the purpose of this section is to allow an employee of an employer to use leave with pay for care for an immedaite family member who is ill under the same conditions and policy rules that would apply if the employee took leave for an employee's own illness."

Lily Ledbetter Civil Rights Restoration Act Adopted (signed on April 14, 2009) - the Maryland Act is similar to the federal Lilly Ledbetter Fair Pay Act of 2009.  With respect to compensation, the Act provides that an unlawful employment practice occurs when: (1) a discriminatory compensation decision or practice is instituted, (2) an employee is subjected to the discriminatory decision or practice, (3) an employee is affected by the application of a discriminatory decision or practice, specifically each time wages, benefits or other compensation is paid.

The Maryland law allows for the aggrieved employee to b awarded back pay for up to two years before the filing of a charge of discrimination if the unlawful employment practice that occurred during the limitations period is similar or related to the unlawful compensation practice or decision that occurred outside the limitations period.  In contrast to the Federal law, the Maryland law does not have a retroactive effect.

Workplace Fraud Act of 2009 (effective date of statutue is October 1, 2009) - pertains to Maryland employers providing construction and landscaping services.  The Act establishes penalties for misclassifying individuals as independent contrators.  Employers may be required to pay up to three times the restitution owed to each affected person and a civil penalty of up to $5,000 for each employee who is not properly classified.  In addition, employers must come into compliance with respect to income tax withholding, unemployment insurance and workers compensation payments.  These requirements must be met within 45 days or a c ivil penalty of up to $1,000 per affected employee may be assessed.  Employers who are found guilty of knowingly committing a second offense can be assessed a civil monetary penalty of up to $10,000 per employee, and subsequent knowing violaitons of up to $20,000 per employee.

Claims can be filed with the Maryland Commission of Labor and Industry or individuals may sue  on their own if no award is issued in an administrative proceeding held by the agency.

The Act also requires employers to provide independent contractors (and others not classified as employees) with: (1) written statements of their classifications, (2) the implication of the classification, and (3) other information to be set forth in the regulations.  Employers must keep records for at least three years identifying the following:

  • Occupation and classification of each employee and independent contractor
  • Rates or methods of pay
  • The amounts paid each pay period
  • Hours worked each day and each period
  • "Evidence" that each person so classified is an exempt person or independent contractor
  • Whatever else the commission may require by regulation.

Maryland State Disability Discrimination Provision Expanded - If passed, the Maryland provision on disability will be brought in line with the federal Americans with Disabilities Act.  The changes will take affect on October 1, 2009.  The definition of disability is expened to include being "regarded as" having a physical or mental impairment, and having a record of a physical or mental impairment.  Employers are required to provide reasonable acommodation to employees with disabilities unless the accommodation creates an undue hardship to the organization.  The expansion also prohibits employers from retailiationg against employees for exercising their rights.

Virginia

On May 6, 2009, lawmakers signed Chapter 878 allowing employees to collect jobless benefits if they leave the job to accompany a spouse in a military relocation.  In order to qualify for the beneifts, the employee must show that:

  • the spouse is on active duty in the military or naval services in the United States
  • the spouse received a permanent change of station order
  • the location of the spouse's new assignment isn't readily accessible from the employee's workplace, and
  • the spouse's new assignment is in a state whose laws wouldn't allow the employee to collect benefits after the relocation.

Benefits paid under this new law will not be charged to the employer's account.  Prior to the passage of this law, employees leaving work voluntarily to follow their spouses were not granted benefits because they left voluntarily without good cause.