Baltimore, Md. (February 25, 2022) -  For many reasons, 2021 felt like déjà vu all over again. The pandemic dragged on, Tom Brady won another Superbowl, and swarms of cicadas greeted us on their 17-year cycle. However, at least for Maryland employers, the more things remained the same, the more they changed. There were several important developments in labor and employment law last year in the State of Maryland, including expansions to the Flexible Leave Act, modifications to COVID-19 workplace safety laws, and amendments to filing deadlines. Below is a summary of the significant changes.

HB290/SB455 Extends SOL in State Agency Discrimination Filings

With the passage of HB290/SB455, the General Assembly amended Maryland's Fair Employment Practices Act (FEPA) to increase the time for filing a complaint alleging an unlawful employment practice (other than harassment) with the Maryland Commission on Civil Rights. Effective October 1, 2021, a complaint must be filed with the Commission within 300 days of the alleged discriminatory act. Previously, complainants only had six months to file such a complaint with the Commission. This change brings the state law into conformity with the federal law, which had an existing 300-day deadline for EEOC filings. Claims of harassment are still subject to a two-year limitations period to file a complaint with the Commission.

COVID-19 Workplace Safety Laws

Effective May 30, 2021, the Maryland General Assembly passed emergency legislation related to COVID-19 workplace safety, the Maryland Essential Workers' Protection Act (EWPA). EWPA imposes workplace safety requirements on essential employers and employees during a health emergency. The measures apply during the COVID-19 pandemic while the State of Maryland remains in a state of emergency. Under EWPA, essential employers are required to provide to essential employees: working conditions that apply applicable federal and state safety standards, access to necessary safety equipment, protocols to ensure employees' access to information regarding applicable safety standards, and any other measures set by the government or any agencies that ensure the health and safety of essential workers.

Under EWPA , an "Essential Worker," is defined as any individual who (1) performs a duty or work responsibility during an emergency that cannot be performed remotely or is required to be at the work site, and (2) provides services that the Essential Employer determines to be essential or critical to its operations. An essential employer is a person or business that employs an essential worker. Maryland's EWPA applies to essential employers in industries and sectors identified by the governor or a federal or state agency as critical to remaining in operation during an emergency.

EWPA additionally provides for paid public health emergency leave if funding is appropriated by the federal or state government. Once such funding has been available, full-time "essential workers" who work at least 40 hours a week will automatically receive 112 hours of paid health emergency leave. Part-time essential workers will receive an amount of leave hours equivalent to the average hours worked during a typical four-day work week.

Economic Stabilization Act

Maryland's General Assembly also passed the Economic Stabilization Act, which revises the Maryland mini-WARN Act in an effort to conform Maryland law to more recently-enacted federal legislation. Specifically, the Economic Stabilization Act revises the circumstances in which employers must provide notice for reductions in operation. A covered reduction in operation under the Act now includes:

  • The relocation of any part of an employer's operation that has the effect of reducing the total number of employees by 25% or 15 total employees, whichever is greater; and
  • The closing of any workplace or portion of operations that has the effect of reducing the total number of employees by 25% or 15 employees, whichever is greater, over any three-month period.

This notice must be given to all employees subject to the reduction in operations, any representative of the affected employees, the Division's dislocated worker unit, and the highest elected official in the political subdivision where the affected workplace is located. Notably, under this Act, notice is not required to be given by the employer if it was actively seeking capital or business that would have enabled the employer to avoid the reduction, or if the reduction is due to a natural disaster.

Flexible Leave Act Amendments Expand Bereavement Leave

Additionally, Maryland amended its Flexible Leave Act to permit employees to use paid leave for bereavement leave for the death of an immediate family member (child, spouse, or parent). The leave may be taken under the same conditions and rules that would apply if the employee took leave for his or her own illness. Employers are not required to advance employees unearned paid leave for use as bereavement leave.

Establishment of the Office of Telework Assistance

The Assembly also passed an Act to establish an Office of Telework Assistance in the Department of Commerce in order to establish best practices for telework policies and for the administration of a grant program for certain qualifying business that develop a teleworking program. State and local government agencies, as well as public institutions of higher learning, must establish a teleworking program including guidelines and designated teleworking positions.

State Workplace Violence Act Amendments

In addition, Maryland's State Workplace Violence Act now permits peace orders to be filed by, or on behalf of, employees, volunteers, or independent contractors who face threats or acts of violence in the workplace. Employers petitioning on behalf of an employee in the District Court of Maryland must file for a peace order within 30 days of the incident and notify the employee before doing so. Importantly, the law prevents employers from being able to retaliate against employees who fail to provide information and/or testify at a peace order hearing.

New Corporate Diversity Requirements for Grant Funding

Finally, effective in 2021, Maryland now prohibits entities from qualifying for certain state benefits – including capital grant funding totaling $1 million or more in a single fiscal year, tax credits totaling $1 million or more in a single fiscal year, and receipt of a state contract with a total value of $1 million or more – unless the entity is able to demonstrate membership of underrepresented communities in its board or executive leadership, or support for such underrepresented communities in the entity's mission. An underrepresented community includes any member who self-identifies as Black, African American, Hispanic, Latino, Asian, Pacific Islander, Native American, Native Hawaiian, or Alaskan Native.

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