Bills to Delay Enforcement of and Exempt Certain Employees from HB 1 Failed to Pass
Senate Bill 304, Maryland Healthy Working Families Act – Delay of Effective Date, and Senate Bill 712, Maryland Healthy Working Families Act – Exemptions, failed to pass. Earned sick leave is now in effect.
Senate Bill 304 received an unfavorable report by the Economic Matters Committee.
MABE Seeking Amendment for Daily “As Needed” Employees
Substitute teachers for substitute teachers? The soon to be voted on veto override for House Bill 1 from 2017, the Healthy Working Families Act, could make this a new reality for local school systems. The legislation, which passed late in the 2017 legislative session but was then vetoed by Governor Hogan, sets thresholds for hours and days worked which then trigger requirements for employers to calculate and provide paid sick leave to even part-time employees. The law would cover school systems as units of state and local government, and mandate that school systems calculate and compensate part-time employees for sick and safe leave for part-time employees who meet the thresholds for hours and days worked.
For local school systems, the vast majority of employees work on a full-time basis and/or are covered by collectively bargained union agreements and already earn paid sick leave. Therefore, the brunt of the impact of this law would be the mandate to manage and pay for newly mandated leave benefits program for substitute teachers and other daily “as available” employees such as substitute bus drivers.
Specifically, the law would require school systems to have a sick and safe leave policy under which an employee earns at least 1 hour of paid sick and safe leave, at the same rate as the employee normally earns, for every 30 hours an employee works. The bill does not apply to employees who regularly work less than 12 hours a week or who work fewer than 24 hours total in a 2-week pay period. However, to determine the eligibility of part-time employees, such as substitute teachers, school systems would nonetheless have to adopt new policies and absorb the administrative expenses associated with recordkeeping, documentation, and notification requirements.
In addition, the new law would provide for enforcement actions by the Department of Labor, Licensing and Regulation and punitive damages for employee complaints. As the legislature’s “Fiscal and Policy Note” warns, “Local government expenditures increase significantly for certain local jurisdictions to allow temporary or part-time employees to earn sick and safe leave.”
What school systems are asking: There is a section of the bill that already exempts daily substitute employees, but only in the “health or human services industry.” A logical extension of this exemption would be to similarly exclude boards of education. This exemption would only be for those school employees who: are called to work on an as–needed basis, can reject or accept the shift offered, and are not guaranteed to be called on to work. These conditions are already in the law.
The section of the bill, and amendment, would read as follows: 3–1303. (A) THIS SUBTITLE DOES NOT APPLY TO AN EMPLOYEE WHO: … (3) (I) IS CALLED TO WORK BY THE EMPLOYER ON AN AS–NEEDED BASIS IN A HEALTH OR HUMAN SERVICES INDUSTRY, OR COUNTY BOARD OF EDUCATION. (see HB 1, pg. 8, lines 27-28 to line 3 on pg. 9)
This amendment would avoid the scenario that a school system calling on a substitute teacher or bus driver to work on any given day could be informed that the part-time employee is instead taking compensated sick leave. The school system would then have to incur that expense, continue to seek a substitute who is available, and calculate earned sick leave for that “substitute for a substitute” under the law.
MABE believes this amendment is reasonable in scope and fiscally prudent in light of the significant costs and disruption to the efficient administration of local school systems, schools, and classrooms in Maryland. Without this amendment, the effect of the mandate to cover daily substitute employees would be to divert scarce resources to enhance benefits for employees who are already compensated in accordance with employment policies concerning their agreement to serve as daily substitute teachers, bus drivers, or in other “as needed” part-time capacities.
Legislative History & Process Highlights
- House Bill 1 passed at the close of the 2017 session, receiving “veto proof” majorities in both the House and Senate.
- The bill was vetoed by the Governor on May 25, 2017.
- A three-fifths vote of the elected membership of both chambers is necessary to override a veto.
- A bill cannot be amended as it is considered for veto override.
- In the House, the bill received 88 of the 85 votes needed to override a veto (two-thirds of 141).
- In the Senate, the bill received 29 of the 29 votes needed to override a veto (two-thirds of 47).
- If the Governor vetoes a bill presented after the session, the veto message must be considered immediately at the next regular or special session of the legislature (January 10, 2018).
- The first day of the 2018 session is January 10, 2018.
- In recent sessions, vetoes presented on the opening day of session have been “special ordered” for a week or more.
- Any bill enacted over the veto of the Governor… shall take effect 30 days after the Governor’s veto is over-ridden, or on the date specified in the Bill, whichever is later. (Maryland Constitution, Art. II, Sec. 17(d)).
- HB 1 passed with an effective date of Jan. 1, 2018.
- A veto override between January 10 and 17, 2018 would result in the new law taking effect 30 days later – between February 10 and 17, 2018.
Note: The legislation refers throughout to earned “sick and safe leave”, with safe leave referring to absences from work due to domestic violence, sexual assault, or stalking committed against the employee or the employee’s family member, including absences to receive related medical or mental health services, social services, or legal services.
For more information, contact John R. Woolums, Esq., MABE’s Director of Governmental Relations, at email@example.com or 410-841-5414