The opinion
62 [104 Op. Att’y
LABOR & EMPLOYMENT
SICK AND SAFE LEAVE – WHETHER EMPLOYERS MAY APPLY
ABSENCE CONTROL POLICIES TO PREVENT ABUSE OF SICK
AND SAFE LEAVE
September 5, 2019
The Honorable Dereck E. Davis
Maryland House of Delegates
You have asked for our opinion about the extent to which the
Maryland Healthy Working Families Act (the “Act”), see Md.
Code Ann., Labor & Empl. (“LE”) §§ 3-1301 to 3-1311, permits
certain employers to apply absence control policies to prevent
abuse of “sick and safe” leave under the Act. Absence control
policies, sometimes called attendance management or absence
management policies, are a tool that many employers use to deter
absenteeism. These policies come in different forms, but the term
often refers to policies that assign employees a “point” or an
“occurrence” for each absence and that can lead to discipline if an
employee accumulates a certain number of points within a certain
period. Although the Act prohibits an employer from “apply[ing]
an absence control policy that includes earned sick and safe leave
absences as an absence that may lead to or result in an adverse
action being taken against an employee,” LE § 3-1309(c)(3), the
Act also states in a separate provision that it “may not be construed”
to “prohibit an employer from adopting and enforcing a policy that
prohibits the improper use of earned sick and safe leave, including
prohibiting a pattern of abuse of earned sick and safe leave.” LE
§ 3-1302(b)(5). In essence, as we understand it, your question is how
those two provisions should be read together.
In our opinion, the Act does not permit an employer to apply
an absence control policy, including one that assigns points to an
employee’s absence, in a way that could lead to or result in adverse
action for the legitimate use of sick and safe leave taken in accordance
with the Act. An employer may, however, apply an absence control
policy (or some other disciplinary policy) to penalize the actual
abuse or improper use of leave under the Act, such as when the
employer can demonstrate that the employee used leave for reasons
not permitted under the Act or that the employee otherwise
engaged in a pattern of abuse of leave under the Act.
Gen. 62] 63
I
Background
A. Statutory Background
During the 2017 legislative session, the General Assembly
passed the Maryland Healthy Working Families Act. See H.B. 1,
2017 Leg., Reg. Sess. After the Governor vetoed the bill, the
General Assembly overrode the veto at the beginning of the 2018
legislative session, and the statute went into effect on February 11,
2018. See 2018 Md. Laws, ch. 1; see also Md. Const., Art. II,
§ 17(d). We summarized the provisions of the Act in detail in an
opinion issued just last year. See 103 Opinions of the Attorney
General 18 (2018). Rather than repeat that summary here, we
focus on the provisions most relevant to your inquiry.
Under the Act, an employer with 15 or more employees
generally must provide its employees with paid “sick and safe
leave,” while an employer with 14 or fewer employees is instead
generally required to provide unpaid leave. LE § 3-1304(a). 1 That
leave, both paid and unpaid, “shall accrue at a rate of at least 1 hour
for every 30 hours an employee works.” LE § 3-1304(b). Employees
may then use accrued leave for one of a series of enumerated
purposes that are outlined in LE § 3-1305(a), including to treat the
employee’s own illness, to care for an ill family member, or to
obtain preventive medical care. See 103 Opinions of the Attorney
General at 21 (listing those purposes). When an employer’s
“existing paid leave policy” provides for paid time off (such as
vacation days, sick days, parental leave, etc.) that can be used for
sick and safe leave and also “permits an employee to accrue and
use leave under terms and conditions that are at least equivalent to
the earned sick and safe leave provided for under” the Act, the Act
may not be construed to “require an employer to modify [that]
existing paid leave policy.” LE § 3-1302(b)(2). 2
1
Some employers and employees are excluded from the scope of the
Act. See 103 Opinions of the Attorney General at 22-23 (summarizing
some of those exclusions). When we refer to employers and employees
in this opinion, we do not mean to include those to whom the Act does
not apply.
2
In addition, “if a unit of State or local government’s sick leave
accrual and use requirements meet or exceed the sick and safe leave
provided for under [the Act],” the State or local government employees
“who are part of the unit’s personnel system are subject to the
64 [104 Op. Att’y
The Act places an obligation on the employee to provide
advance notice to the employer when the need for the leave is
“foreseeable”; when the need for leave is not foreseeable, the
employee need only provide notice as soon as practicable. LE § 3-
1305(b)(2). If an employee “fails to provide” the required notice,
the employer may deny the employee’s request to use accrued sick
and safe leave if “the employee’s absence will cause a disruption
to the employer.” LE § 3-1305(b)(3). The employer may not,
however, require that an employee provide verification that the sick
and safe leave was used appropriately unless the employee uses the
leave for more than two consecutive shifts. LE § 3-1305(g)(1)(i). 3
If an employee refuses to provide the required verification, the
employer may deny a subsequent request to use earned sick and
safe leave for the same reason. LE § 3-1305(g)(2).
Of particular relevance here, the Act provides that it “may not
be construed” to “prohibit an employer from adopting and
enforcing a policy that prohibits the improper use of earned sick
and safe leave, including prohibiting a pattern of abuse of earned
sick and safe leave.” LE § 3-1302(b)(5). But, as noted above, an
employer may not “apply an absence control policy that includes
earned sick and safe leave absences as an absence that may lead to
or result in an adverse action being taken against an employee.”
LE § 3-1309(c)(3).4 An employer also may not “take adverse
action or discriminate against an employee because the employee
exercises in good faith the rights protected under” the Act and may
not “interfere with, restrain, or deny the exercise by an employee
of any right provided for under” the Act. LE § 3-1309(c)(1), (2).
For purposes of those anti-retaliation provisions, “adverse action”
is defined to include “discharge,” “demotion,” “threatening the
[governmental] unit’s law, regulations, policies, and procedures” for
“accrual and use of sick leave,” “grievances,” and “disciplinary actions,”
rather than subject to the relevant provisions in the Act. LE § 3-1303(c).
3
The law also provides that an employer may require an employee
to provide verification that leave was used appropriately if the employee
used the leave between the first 107 and 120 days that the employee
worked for the employer and the employee agreed to provide such
verification at the time of hire. LE § 3-1305(g)(1)(ii). During the “first
106 calendar days the employee works for the employer,” an employer
is not required to allow an employee to use sick and safe leave. LE § 3-
1304(c)(4).
4
There are at least a few other states that have similar prohibitions
on the use of “absence control polic[ies]” to penalize employees for
using sick leave. See Ariz. Rev. Stat. Ann. § 23-374; Cal. Lab. Code
§ 234; D.C. Code Ann. § 32-531.08; Or. Rev. Stat. Ann. § 653.641.
Gen. 62] 65
employee with discharge or demotion,” and “any other retaliatory
action that results in a change to the terms or conditions of
employment that would dissuade a reasonable employee from
exercising a right under” the Act. LE § 3-1309(a).
B. Legislative History
The Act was originally introduced as House Bill 1 at the
beginning of the 2017 legislative session. As introduced, the bill
included the same prohibition that now appears in LE § 3-
1309(c)(3) against applying an absence control policy that may
result in adverse action taken against an employee for using sick
and safe leave. The original bill also provided that the Act could
not be construed to “prohibit an employer from adopting a policy
that limits an employee to using earned sick and safe leave only for
the reasons listed in § 3-1305(a) of this subtitle.” See H.B. 1 (first
reader). During the hearings on the bill, several employers expressed
concern that the proposed limitations on employers’ ability to
require verification of leave usage and to apply absence control
policies might lead to abuse. See, e.g., Hearing on H.B. 1 Before
the House Econ. Matters Comm., 2017 Leg., Reg. Sess. (Feb 10,
2017) (written testimony of the University System of Maryland);
id. (written testimony of the Maryland Chamber of Commerce); see
also Hearing on S.B. 230 Before the Senate Finance Comm., 2017
Leg. Reg. Sess. (Feb. 9, 2017) (written testimony of the Maryland
Chapter of the Associated General Contractors of America). 5
Following the bill hearings, the House Economic Matters
Committee amended the provision that allowed an employer to
adopt “a policy that limits an employee to using earned sick and
safe leave only for the reasons listed in § 3-1305(a) of this subtitle”
to instead provide (as does the final version) that the Act may not
be construed to preclude an employer from adopting and enforcing
a policy that “prohibits the improper use of earned sick and safe
leave, including prohibiting a pattern of abuse of earned sick and
safe leave.” Committee Amendments to H.B. 1, House Econ.
Matters Comm. (Feb. 27, 2017). The General Assembly did not,
however, make any change to the provision prohibiting the
application of an absence control policy to sick and safe leave
absences when that application may lead to adverse action against
an employee.
5
Senate Bill 230 was the cross-filed version of House Bill 1.
66 [104 Op. Att’y
C. Absence Control Policies
As noted above, absence control policies come in many
different forms. Although it is not possible to provide a
comprehensive summary of what such policies might entail, they
generally provide for some type of discipline when employees are
absent or tardy under certain conditions or for a certain number of
days. For example, the term is often used to refer to so-called “no-
fault” attendance policies under which an employer assigns
“points” or “occurrences” to employee absences—or at least to
particular types of absences, such as unexcused or unplanned
absences—regardless of the reason for the absence. Once an
employee has accumulated a certain number of points or
occurrences within a set period of time (often a year), the employee
may be subject to progressive discipline, including a warning,
suspension, or even termination. See, e.g., McCarther v. Pacific
Telesis Grp., 48 Cal. 4th 104, 107-08 (2010) (summarizing one
example of a no-fault policy); Nathan W. Powell, The Absence of
Control: Employers’ Inability to Apply Family Sick Leave to
Absence Control Policies, 34 McGeorge L. Rev. 451, 452 (2003)
(same); Robert J. Aalberts, Employee Notice Requirements Under
the Family and Medical Leave Act: Are They Manageable?, 24
Pepperdine L. Rev. 1209, 1221 (1997) (same). However, not all
absence control policies follow that same model; an employer
might choose to use a points-based system that takes into account
the type of leave used and the reasons for the leave, see, e.g.,
Galante v. Sandoz, Inc., 192 N.J. Super. 403, 405 (1983)
(summarizing an absence control policy with exceptions for certain
types of leave), or might choose not use a points-based system at
all.
D. 2019 Legislative Session - House Bill 686
During the 2019 session, the General Assembly considered a
bill that would have amended the Act to allow an employer to apply
an absence control policy under specified circumstances. More
specifically, the amendment would have allowed employers to
apply an absence control policy if the employer provides at least 40
hours of paid leave in a year, excluding earned sick and safe leave,
and the absence control policy (i) is uniformly applied to all types
of leave offered by the employer; (ii) is provided to an employee in
writing; (iii) has a progressive accountability structure; and (iv)
provides a warning to an employee before any possible action is
taken against the employee. H.B. 686, 2019 Leg., Reg. Sess. (first
reader).
Gen. 62] 67
The majority of the employer representatives who testified in
support of House Bill 686 were from hospitals or hospital
associations. Hearing on H.B. 686 Before the House Econ. Matters
Comm., 2019 Leg., Reg. Sess. (Feb. 19, 2019). These hospital
employers testified that, since the Act’s effective date in 2018, they
had seen an increase in unplanned absences, particularly before and
after holidays and long weekends. Id. For example, Johns Hopkins
Hospital stated that it had experienced an additional 38,247 hours
of unscheduled absences in the second quarter of fiscal year 2019
compared to the same quarter in fiscal year 2018 prior to the Act
going into effect. Id. (written testimony of Johns Hopkins Hospital).
The hospital attributed the increase to “the law’s prohibition on
using a no-fault attendance management policy.” Id. 6
Opponents of the bill testified that the statute already included
a number of safeguards to prevent abuse of sick and safe leave
under the Act—including the provision in LE § 3-1302(b)(5) that
allows employers to adopt policies prohibiting improper use and
patterns of abuse of leave—and that, therefore, the proposed bill
was not necessary. See, e.g., id. (written testimony of the Public
Justice Center); id. (written testimony of the Women’s Law Center
of Maryland). Ultimately, the bill did not pass and was referred by
the Economic Matters Committee for further study during the
interim between legislative sessions. As Chair of the Economic
Matters Committee, you have sought our opinion on the
interpretation of LE §§ 3-1309(c)(3) and 3-1302(b)(5).
II
Analysis
You have asked whether employers, including employers
with existing paid leave policies, may apply absence control
policies to curtail alleged abuse of “sick and safe” leave under the
Act. The “cardinal rule” of statutory construction is, as always, “to
ascertain and effectuate the intent of the Legislature.” Stickley v.
State Farm Fire & Cas. Co., 431 Md. 347, 358 (2013) (internal
quotation marks omitted). Like the Maryland courts, “we begin
with the normal, plain meaning of the statute,” State v. Bey, 452
Md. 255, 265 (2017) (internal quotation marks omitted), reading
6
We take no position on whether the increase in unplanned absences
is in fact due to abuse of the Act or whether, as others have urged, that
increase is merely evidence that the Act is working as intended by
allowing employees to take unplanned absences for legitimate reasons
when necessary.
68 [104 Op. Att’y
the statute’s words in accordance with “their natural and ordinary
meaning,” Davis v. State, 426 Md. 211, 218 (2012). We also
interpret that language in light of “the context of the statutory
scheme to which it belongs, considering the purpose, aim, or policy
of the Legislature in enacting the statute.” Lockshin v. Semsker,
412 Md. 257, 276 (2010). When the statutory language, read in
context, “is unambiguous and clearly consistent with the statute’s
apparent purpose,” the inquiry “ordinarily” ends. Id. at 275. When,
however, “true legislative intent cannot be readily determined from
the statutory language alone,” we turn to other sources of
legislative intent, such as the “structure of the statute,” the
“legislative history,” “the general purpose behind the statute,” and
“the relative rationality and legal effect of various competing
constructions.” Montgomery County v. Phillips, 445 Md. 55, 63
(2015).
With those principles in mind, we start our analysis with the
plain language of the statute. The language of LE § 3-1309(c)(3),
at least at first blush, is clear: An employer may not “apply an
absence control policy that includes earned sick and safe leave
absences as an absence that may lead to or result in an adverse
action being taken against an employee.” Under the plain language
of that provision, an employer may not count a sick or safe leave
absence toward any disciplinary action that might be taken
pursuant to an absence control policy. Thus, under an absence
control policy that uses “points” or “occurrences,” the employer
may not assign a “point” or “occurrence” to an absence that the
employee was entitled to take under the Act. Even though the
employee’s use of sick and safe leave in a particular instance might
not result in any immediate adverse action, the statute makes clear
that any consequence that eventually “may lead to” an adverse
action in the future, such as the assignment of a point, is prohibited.
LE § 3-1309(c)(3).
The question, then, is whether LE § 3-1302(b)(5)—which
provides that the Act “may not be construed to . . . prohibit an
employer from adopting and enforcing a policy that prohibits the
improper use of earned sick and safe leave, including prohibiting a
pattern of abuse of earned sick and safe leave”—allows an
employer to apply an absence control policy in a way that would
otherwise be prohibited under § 3-1309(c)(3). When, as here, two
provisions of the same statutory scheme could be viewed as in
conflict with each other, we must attempt to “read [the provisions]
together,” that is, interpret them “with reference to one another,”
and harmonize them, “to the extent possible, both with each other
and with other provisions of the statutory scheme.” Government
Gen. 62] 69
Employees Ins. Co. v. Insurance Comm’r, 332 Md. 124, 132 (1993)
(internal citations omitted); see also Maryland-Nat’l Capital Park
& Planning Comm’n v. Anderson, 395 Md. 172, 200 (2006)
(explaining that the courts “read together statutes on the same
subject and harmonize them to the extent possible”).
In this case, the two provisions at issue can be easily
harmonized. Although § 3-1302(b)(5) provides that the Act “may
not be construed to” preclude employers from adopting and
enforcing policies to prohibit the improper use or abuse of sick and
safe leave, many absence control policies—at least as we
understand them—go much further than merely prohibiting the
improper use or abuse of leave. Rather, such policies (especially
no-fault policies) may apply to an absence regardless of the reason
for the leave and regardless of whether the employee complied with
the Act in taking that leave. Thus, the fact that the Act “may not
be construed” to prevent an employer from adopting a policy that
prohibits improper use or abuse of sick or safe leave does not in
any way suggest that an employer may apply an absence control
policy to all sick and safe leave absences, even when there is no
evidence that the employee in question has engaged in any
improper use or pattern of abuse of leave.
In fact, if employers could apply absence control policies
indiscriminately to all sick and safe leave absences, even when the
employee is legitimately using the leave, that interpretation would
effectively eviscerate the Act’s anti-retaliation protections by
chilling the legitimate use of leave under the Act. What is more,
interpreting the statute to allow absence control policies to be
applied to the legitimate use of sick and safe leave would render
LE § 3-1309(c)(3) largely meaningless by permitting employers to
apply absence control policies in the precise way that the provision
says that they cannot. See Anderson, 395 Md. at 200 (explaining
that, when harmonizing two related provisions, courts must “avoid
rendering either [provision] or any portion of [the provision],
meaningless, surplusage, superfluous or nugatory” (internal
quotation marks omitted)). The plain language of the Act, read as
a whole and in light of its broad remedial purposes, see 103
Opinions of the Attorney General at 34-35, demonstrates that the
Legislature did not intend to authorize employers to use absence
control policies in such an overbroad and indiscriminate way.
That conclusion applies equally to “existing paid leave
polic[ies]” under § 3-1302(b)(2) of the Act. To be sure, that
provision states that the Act does not “require an employer to
70 [104 Op. Att’y
modify an existing paid leave policy” when the policy “permits an
employee to accrue and use leave under terms and conditions that
are at least equivalent to the earned sick and safe leave provided
for under” the Act. LE § 3-1302(b)(2). But even assuming that an
absence control policy could be considered part of the employer’s
“paid leave policy,” as opposed to a separate policy, the “terms and
conditions” of that paid leave policy would not be “equivalent to”
those in the Act if they were to allow employers to apply an absence
control policy to sick and safe leave absences in a manner that is
expressly and specifically prohibited by the Act. Although the Act
provides that “the terms and conditions of a paid leave policy shall
be presumed to be equivalent” if they allow an employee to “access
and accrue paid leave” at the same or greater rate than under the
Act and to “use the paid leave for the purposes” provided for in the
Act, LE § 3-1302(c), that presumption is just that—a presumption—
and it would not hold in the face of an absence control policy that
penalizes employees for using their leave in a way that the Act is
intended to protect. 7
We do not mean to suggest, however, that an employer is
powerless to curtail abuse of sick and safe leave under the Act. For
example, under an absence control policy that uses “points” or
“occurrences,” an employer could likely assign a point to an
absence when the employee actually engaged in improper use or a
pattern of abuse of leave under the Act, such as if the employee
took sick and safe leave for an impermissible reason, see LE § 3-
1305(a); the employee had already exhausted his or her sick and
safe leave, see LE § 3-1304(c) 8; or the employee failed to provide
7
To the extent that government employers in Maryland have
absence control policies, it is possible that the analysis would be different
for the category of government employers with “sick leave accrual and
use requirements” that “meet or exceed the sick and safe leave provided
for under” the Act. LE § 3-1303(c). For those employers, the Act
provides that the employees “who are part of the unit’s personnel
system” are generally “subject to the unit’s law, regulations, policies,
and procedures” for “disciplinary actions,” rather than subject to the
relevant provisions of the Act. Id. Although we do not address that
question definitively here, we note that there is at least some ambiguity
about how LE § 3-1309(c)(3) would apply to some government
employers and employees.
8
Technically, when an employee has already exhausted his or her
sick and safe leave, that absence—rather than constituting the “improper
use” of sick and safe leave per se—might not even qualify as a “sick and
safe leave absence” under LE § 3-1309(c)(3) in the first place. Either
way, an employer could likely apply an absence control policy to an
Gen. 62] 71
the necessary verification that the leave was used appropriately
under conditions when verification was required under the Act, see
LE § 3-1305(g). 9 That reading harmonizes §§ 3-1309(c)(3) and 3-
1302(b)(5) by permitting the use of an absence control policy under
limited circumstances when the absence was the result of actual
improper use or patterns of abuse of sick and safe leave but
otherwise prohibiting absence control policies as an overbroad tool
to discipline employees for the legitimate use of sick and safe
leave. 10
Alternatively, rather than trying to apply a points-based
absence control policy to sick and safe leave absences, an employer
could adopt and enforce a different type of policy—whether framed
as an absence control policy or as a separate disciplinary policy—
that specifically targets the improper use or abuse of sick and safe
leave. Given that the Act permits employers to adopt and enforce
policies that “prohibit[] the improper use of earned sick and safe
leave,” including “pattern[s] of abuse” of that leave, LE § 3-
1302(b)(5), an employer could likely adopt that type of policy, so
long as it penalizes actual improper use, or actual patterns of abuse,
of leave under the Act, not the legitimate use of sick and safe leave.
absence once the employee has exhausted his or her sick and safe leave.
See Maryland Dep’t of Labor, Licensing & Regulation, Maryland
Healthy Working Families Act: Frequently Asked Questions (March 9,
2018), http://www.dllr.state.md.us/paidleave/paidleavefaqs.pdf (“After an
employee has exhausted all of the leave that he or she is entitled to use
under the earned sick and safe leave law, then an employer could apply
its normal attendance policies to any absences taken after the leave has
been exhausted.”).
9
This list of examples is not necessarily exhaustive. There may be
other actions that, depending on the circumstances, would constitute the
improper use of, or a pattern of abuse of, sick and safe leave under the
Act and for which an employer could assign a point or occurrence under
an absence control policy.
10
In addition to this permissible use of an absence control policy, the
Act also provides employers with other tools to help prevent abuse. For
instance, the Act specifically permits an employer to deny an employee’s
request to use sick and safe leave in certain situations when an employee
fails to provide proper notice. See LE § 3-1305(b)(3). Similarly, when
an employee fails to provide the required verification under the Act after
missing two consecutive shifts, the statute permits an employer to deny
an employee’s request to use leave for the same reason. See LE § 3-
1305(g)(2).
72 [104 Op. Att’y
To be clear, we cannot provide definitive guidance in the
abstract about exactly what terms a hypothetical absence control
policy or disciplinary policy might permissibly include or exactly
how an employer might permissibly define “pattern[s] of abuse” in
that hypothetical policy. As a practical matter, the Commissioner
of Labor & Industry (the “Commissioner”), who is charged with
administering the Act, may have to decide in each case whether the
particular policy at issue is consistent with the Act’s requirements.
See LE § 3-1308 (outlining the enforcement process by which the
Commissioner determines whether there has been a violation of the
Act). To the extent that there is ambiguity in the statutory scheme,
the Commissioner could also consider promulgating regulations to
clarify the disciplinary policies that employers are allowed to adopt
under the Act. See 103 Opinions of the Attorney General at 47
(noting that the Commissioner is empowered to adopt regulations
to, among other things, clarify ambiguities in the statute). 11 But
regardless of the specifics of any particular absence control policy
or other disciplinary policy, the bottom line is that an employer may
not apply such a policy to sick and safe leave absences in a manner
that could lead to adverse action against an employee unless the
employee actually used the leave improperly or actually engaged
in a pattern of abuse of leave under the Act.
11
We note that, under Oregon’s sick leave law, “[i]f an employer
suspects that an employee is abusing sick time, including engaging in a
pattern of abuse, the employer may require verification from a health
care provider of the need of the employee to use sick time, regardless of
whether the employee has used sick time for” the minimum number of
days for which verification is normally required. Or. Rev. Stat. §
653.626(3)(b). That law then defines “pattern of abuse” as including but
not limited to “repeated use of unscheduled sick time on or adjacent to
weekends, holidays, vacation days or paydays.” Id. Somewhat
similarly, the District of Columbia’s sick leave law provides that
“[n]othing in this subchapter shall prohibit an employer from
establishing and enforcing a lawful policy relating to improper use of
paid leave or from seeking more frequent certifications from an
employee if there is evidence of a pattern of abuse of paid leave.” D.C.
Code Ann. § 32-531.08(c) (emphasis added). We do not address here
whether Maryland’s statute could be interpreted to allow employers to
impose similar verification requirements when an employee is engaging
in a suspected pattern of abuse despite the language in LE § 3-1305(g)(1)
that permits employers to require verification only when employees have
missed two consecutive shifts or are within their first 120 days on the
job. Of course, if the General Assembly so desires, it could amend the
statute to clarify the meaning of “a pattern of abuse” as well as the extent
to which an employer may ask for verification when there is some
suspicion of a pattern of abuse.
Gen. 62] 73
Although we recognize that it may sometimes be difficult for
an employer to know whether an employee has used sick and safe
leave improperly, the General Assembly was confronted with that
same argument during the hearings on the Act yet did not change
the provision prohibiting employers from using absence control
policies to penalize legitimate uses of leave. More specifically, the
Maryland Chamber of Commerce had argued that the provision
exempting sick and safe leave absences “from no fault attendance
policies” would be “particularly problematic” and would “leave[]
the door wide open for flagrant abuse of this leave” because
employers would not be able to determine “if such absences were
legitimate” and would have “no way to deter employees from
fraudulent use” of their leave. Hearing on H.B. 1 (written
testimony of the Maryland Chamber of Commerce). In responding
to those concerns, the Legislature could easily have amended the
bill to allow employers to apply absence control policies broadly to
all absences. Instead, it chose to amend the bill merely to allow
employers to adopt policies prohibiting the improper use or abuse
of sick and safe leave—a significantly narrower change. See
Committee Amendments to H.B. 1, House Econ. Matters Comm.
(Feb. 27, 2017). We must presume that the General Assembly
meant what it said: Although employers may adopt and enforce
policies that prohibit the actual improper use of sick and safe leave,
including patterns of abuse of such leave, employers may not use
absence control policies to penalize the legitimate use of leave
under the Act.
III
Conclusion
For the reasons explained above, we conclude that an
employer may not apply an absence control policy to a sick and
safe leave absence in a manner that may lead to or result in adverse
action against an employee for the legitimate use of sick and safe
leave. That is, an employer may not apply an absence control
policy (or other similar disciplinary policy) to a sick and safe leave
absence unless the employer can demonstrate that the employee
actually improperly used or otherwise engaged in a pattern of abuse
of sick or safe leave under the Act.
Brian E. Frosh
Attorney General of Maryland
Patrick B. Hughes
Chief Counsel, Opinions and Advice