AGENDA ITEM 10
September 20,2016
Public Hearing
MEMORANDUM
September 16,2016
\
TO:
FROM:
SUBJECT:
County Council
Josh
Hamlin,
Legislative
Attom~
l'
i \./
Public Hearing:
Bill 32-16, Hwnan Rights and Civil Liberties - Earned Sick and
Safe Leave - Use of Earned Sick and Safe Leave - Parental Leave
Bill 32-16, Hwnan Rights and Civil Liberties - Earned Sick and Safe Leave - Use of
Earned Sick and Safe Leave - Parental Leave, sponsored by Lead Sponsor Councilmember Hucker
and Co-sponsors Council Vice President Berliner and Councilmembers
Katz
and Navarro, was
introduced on August 2, 2016. A Health and Hwnan Services Committee worksession is
tentatively scheduled for October 17 at 9:30 a.m.
Bill 32-16 would amend the County's Earned Sick and Safe Leave Law to provide that
certain employees may use earned sick and safe leave for parental purposes, which is not currently
expressly permitted.
Background
Bill 60-14, Hwnan Rights and Civil Liberties - Earned Sick and Safe Leave, enacted on
June 23, 2015 and signed into law on July 2, 2015, requires an employer doing business in the
County to provide a minimwn amount of earned sick and safe leave for an employee who works
in the County. Bill 60-14 was enacted with a delayed effective date of October 1, 2016 to give
employers time to adapt their payroll systems to the new law. The County Office ofHwnan Rights
has been meeting with County businesses over the past year to explain the new law and answer
questions.
Under the provisions of the new law, an employee may use earned sick and safe leave for
several enwnerated purposes. Bill 32-16 will add two related purposes for which use of sick and
safe leave will be permitted. The Bill would permit the use of sick and safe leave: (1) for the birth
of a child, or for the placement of a child with the employee for adoption or foster care; and (2) to
care for a newborn, newly adopted, or newly placed child within one year of birth, adoption, or
placement.
Employees have leave rights and protections under federal, State, and now County law,
and there is some overlap among these provisions. A summary ofthe related provisions at different
levels of government is useful
in
understand the actual effect of the changes proposed in Bill 32­
16.
 PDF to HTML - Convert PDF files to HTML files
Federal law - Family and Medical Leave Act
The federal Family and Medical Leave Act (FMLA) entitles eligible employees who work
for covered employers to take
unpaid,
job-protected leave for specified family and medical
reasons. Eligible employees may take up to 12 workweeks of leave during any 12-month period
for certain family and medical reasons. These reasons include, among others, use of leave for the
birth and care of the newborn child of an employee, or for placement with the employee of a child
for adoption or foster care.
An
employee is an "eligible employee" ifthe employee has worked for
their employer at least 12 months, at least 1,250 hours over the past 12 months, and works at a
location where the company employs 50 or more employees within 75 miles.
Under regulations adopted pursuant to the FMLA,
l
an eligible employee may choose to
substitute accrued paid leave for FMLA leave. The employee's ability to substitute accrued paid
leave is determined by the terms and conditions of the employer's normal leave policy, such as
submitting a leave form or providing advance notice. If the employee does not comply with the
requirements of the employer's paid leave policy, then the employee may be forbidden from
substituting accrued paid leave, but this does not change the employee's entitlement to take FMLA.
State law - Maryland Parental Leave Act
The Maryland Parental Leave Act (PLA) is similar to the FMLA, but applies to smaller
employers (15-49 employees) and is limited to "parental" leave. The PLA guarantees eligible
employees 6 workweeks of unpaid parental leave during any 12-month period for the birth of the
employee's child or the placement of a child with the employee for adoption or foster care. An
"eligible employee" under the PLA is quite similar to that under the FMLA, other than the size of
the employer.
2
The PLA also has a provision allowing an employee to substitute paid leave for the
unpaid leave guaranteed by the law. If an employer provides paid leave to an eligible employee,
the employer may require the eligible employee, or the eligible employee may elect, to substitute
the paid leave for any part of or all ofthe period of parental leave.
County Sick and Safe Leave law
As mentioned above, the County's Sick and Safe Leave Law, effective October 1, 2016,
requires an employer doing business in the County to provide a minimum amount of earned sick
and safe leave for an employee who works in the County. The County's definition of an employee
eligible to earn and use this leave is much broader than the federal and State laws.
In particular, County Code Section 27-79(a) sets forth the permissible uses of earned sick
and safe leave. These uses are all related to either mental or physical health issues or domestic
violence, sexual assault, or stalking. Under County law, an employee, which is broadly defined,
129 CFR 825.207 - Substitution of paid leave.
2
Under MD Code, Labor and Employment,
§
3-1201, "eligible employee" means an individual who has requested
that an employer provide parental leave and who, as of the date that the requested parental leave begins, will have
been employed by that employer for at least:
(i)
a 12-month period; and
(ii)
1,250 hours during the previous 12 months.
"Eligible employee" does not include an individual:
(i)
who is employed at a work site at which the employer employs
fewer than 15 employees if the total number of employees employed by that employer within 75 miles of the work
site is also fewer than 15; or
(ii)
who is an independent contractor.
2
 PDF to HTML - Convert PDF files to HTML files
may use the leave:
(1)
to care for or treat the employee's mental or physical illness, injury, or
condition; (2) to obtain preventive medical care for the employee or the employee's family
member; (3) to care for a family member with a mental or physical illness, injury, or condition;
(4) ifthe employer's place ofbusiness has closed by order of a public official due to a public health
emergency; (5) if the school or child care center for the employee's family member is closed by
order of a public official due to a public health emergency; (6) to care for a family member if a
health official or health care provider has determined that the family member's presence in the
community would jeopardize the health of others because of the family member's exposure to a
communicable disease; or (7) in certain circumstances ifthe absence from work is due to domestic
violence, sexual assault, or stalking committed against the employee or the employee's family
member.
Effect of the Bill
Due to the employer size and duration ofemployment requirements ofthe FMLA and PLA,
there are some "employees" under County law who would not be able to substitute paid leave,
such as County earned sick and safe leave, under the provisions of those laws. Also, because the
PLA covers the birth or placement, but not "care" (as is covered by the FMLA) of a child,
employees eligible under the PLA but not FMLA
(i.
e.,
employees of employers with 15-49
employees) are not assured ofthe ability to use paid leave for the care oflbonding with a new child
for the first year. Bill 32-16 closes these gaps.
Also, while it is likely that the birth of a child would likely fall within the existing
permissible uses of County sick and safe leave, placement for adoption or foster care would not,
as there is not the requisite "mental or physical illness, injury, or condition" or medical necessity.
Similarly, there is nothing in the County law that requires an employer to allow a new parent to
use sick and safe leave to spend time with a healthy child during the child's first year with the
family. The provision proposed at lines 21-22 ofthe Bill, "to care for a newborn, newly adopted,
or newly placed child within one year of birth, adoption, or placement," would make this possible.
Thus, the provisions of Bill 32-16 both clarify and expand permissible uses of County sick and
safe leave without requiring employers to provide any additional paid leave. They also ensure that
a broader range of employees than those already protected by the FMLA and PLA are able to use
paid leave for these purposes.
This packet contains:
Bill 32-16
Legislative Request Report
F:\LAw\BILLS\1632 Human Rights And Civil Liberties-Parental Leave\PH Memo.Docx
Circle #
1
4
3
 PDF to HTML - Convert PDF files to HTML files
Bill No.
32-16
Concerning: Human Rights and Civil
Liberties - Earned Sick and Safe
Leave - Use of Earned Sick and Safe
Leave - Parental Leave
Draft No._1
Revised: May 10, 2016
Introduced:
August 2,2016
Expires:
February 2, 2018
Enacted: _ _ _ _ _ _ _ _ __
Executive: _---:-_ _ _--::_ __
Effective:
October 1, 2016
Sunset Date: --!..:.No:::..:n.!.::e'--_ _ _ _ __
Ch. _ _, LawsoflVlont. Co. _ __
COUNTY COUNCIL
FOR MONTGOMERY COUNTY, MARYLAND
Lead Sponsor: Councilmember Hucker
Co-Sponsors: Vice President Berliner and Councilmembers Katz and Navarro
AN
ACT to:
(1)
(2)
provide that certain employees may use earned sick and safe leave for parental
purposes; and
generally regulate the eligibility for sick and safe leave benefits provided to an
employee working in the County for certain employers,
By amending
Montgomery County Code
Chapter
27,
Human Rights and Civil Liberties
Article XIII, Earned Sick and Safe leave
Section
27-79
Boldface
Underlining
[Single boldface brackets]
Double underlining
[[Double boldface brackets]]
* * *
Heading or defined term.
Added to existing law by original bill.
Deletedfrom existing law by original bill.
Added by amendment.
Deletedfrom existing law or the bill by amendment.
Existing law WUlffected by bill.
The County Council for Montgomery County, Maryland approves thefollowing Act:
 PDF to HTML - Convert PDF files to HTML files
BILL
No. 32-16
1
Sec.
1.
Section 27-79 is amended as follows:
27-79.
(a)
2
3
4
Use of Earned Sick and Safe Leave.
An employee may use earned sick and safe leave:
(1)
to care for or treat the employee's mental or physical illness, injury,
or condition;
(2)
to obtain preventive medical care for the employee or the
employee's family member;
(3)
to care for a family member with a mental or physical illness,
injury, or condition;
(4)
if the employer's place of business has closed by order of a public
official due to a public health emergency;
(5)
ifthe school or child care center for the employee's family member
is closed by order of a public official due to a public health
emergency;
(6)
to care for a family member if a health official or health care
provider has determined that the family member's presence in the
community would jeopardize the health of others because of the
family member's exposure to a communicable disease; [or]
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
(7)
for the birth of
~
child, or for the placement of
~
child with the
employee for adoption or foster care;
20
21
22
23
LID
(2.)
to care for
~
newborn, newly adopted, or newly placed child within
one year of birth, adoption, or placement; or
if the absence from work is due to domestic violence, sexual
assault, or stalking committed against the employee or the
employee's family member and the leave is used:
(A) by the employee to obtain for the employee or the
employee's family;
24
25
26
27
1.docx
o
f:\law\bills\1632 human rights and civil liberties-parental leave\bill
 PDF to HTML - Convert PDF files to HTML files
BILL No. 32-16
28
29
30
31
(i)
medical attention needed to recover from a physical
or psychological injury due to domestic violence,
sexual assault, or stalking;
(ii)
services from a victim services organization related
to the domestic violence, sexual assault, or stalking;
or
32
33
34
35
36
37
38
39
40
41
(iii)
legal
servIces,
including
preparmg
for
or
participating in a civil or criminal proceeding related
to the domestic violence, sexual assault, or stalking;
or
(B)
during the time that the employee has temporarily relocated
due to the domestic violence, sexual assault, or stalking.
Sec. 2. Effective date.
This Act takes effect on October 1,2016.
Approved:
42
43
Nancy Floreen, President, County Council
Date
44
45
Approved:
Isiah Leggett, County Executive
Date
46
47
This is a correct copy ofCouncil action.
Linda M. Lauer, Clerk of the Council
Date
1.docx
o
f:\law\bills\1632 human rights and civilliberties-parentalleavelbill
 PDF to HTML - Convert PDF files to HTML files
LEGISLAriVE REQUEST REPORT
Bill 32-16
Human Rights and Civil Liberties
-
Earned Sick and Safe Leave
-
Use ofEarned Sick and Safe Leave
~
Parental Leave
DESCRIPTION:
The Bill would pennit the use of sick and safe leave for: (1) for the
birth of a child, or for the placement of a child with the employee for
adoption or foster care; and (2) to care for a newborn, newly adopted,
or newly placed child within one year of birth, adoption, or placement.
The earned sick and safe leave pennits an employee to use the leave
for several purposes, but does not expressly pennit its use for parental
purposes.
Pennit employees who are new parents, either through birth or
placement for foster care or adoption, to use earned sick and safe leave
for the birth or placement of a new child, and to bond with the child
during the first year after the child's birth, adoption, or placement.
Office of Human Rights
To be requested.
To be requested.
To be requested.
To be researched.
Josh Hamlin, Legislative Attorney
To be researched.
PROBLEM:
GOALS AND
OBJECTIVES:
COORDINATION:
FISCAL IMPACT:
ECONOMIC
IMPACT:
EVALUATION:
EXPERIENCE
ELSEWHERE:
SOURCE OF
INFORMATION:
APPLICATION
WITHIN
MUNICIPALITIES:
PENALTIES:
None.
F:\LAw\BILLS\1632 Human Rights And Civil Liberties-Parental Leave\LRR.Docx