Maryland Attorney General Opinion 103OAG018

18 [103 Op. Att’y

LABOR & EMPLOYMENT

PUBLIC SCHOOLS – SICK AND SAFE LEAVE – STATUTORY

CONSTRUCTION – WHETHER DAILY SUBSTITUTE

TEACHERS ARE EXCLUDED FROM EARNING SICK AND

SAFE LEAVE UNDER THE MARYLAND HEALTHY WORKING

FAMILIES ACT

December 4, 2018

The Honorable Nancy J. King

The Honorable Thomas M. Middleton

You have asked for our opinion about the applicability of the

Maryland Healthy Working Families Act (the “Act”), see Md.

Code Ann., Labor & Empl. (“LE”) §§ 3-1301 to 3-1311, to so-

called “daily substitute teachers” employed by Maryland’s local

school systems. The Act requires covered employers, including

State and local governments, to provide their employees with a

minimum amount of earned “sick and safe leave.” LE § 3-1304.

With certain exceptions, employers that employ 15 or more

employees must provide paid sick leave, while employers with 14

or fewer employees must provide unpaid leave. LE § 3-1304(a).

Prior to the passage of the Act, most regular public school teachers

in Maryland already earned sick leave, but the newly enacted

statute has raised questions about whether substitute teachers are

also entitled to such leave. The local school systems believe that

the Act requires them to provide sick leave to “long-term”

substitute teachers but question whether the Act applies to “daily”

substitute teachers who are offered assignments on a day-to-day

basis. See Letter from Leslie R. Stellman, Counsel to the Public

School Superintendents of Maryland, to Attorney General Brian E.

Frosh (Feb. 28, 2018) (“Stellman Letter”).

In response to an earlier request for advice on this issue, the

Counsel to the General Assembly advised that whether the Act

applies to daily substitute teachers in a county might depend on

“how [that] particular school system handles the hiring of substitute

teachers.” Letter from Sandra Benson Brantley, Counsel to the

General Assembly, to Delegate Dereck E. Davis (Feb. 6, 2018).

The Counsel to the General Assembly further advised that,

although it was “very possible” that many daily substitute teachers

would not be covered by the Act, a local school district “should

consult with its own counsel to determine the [Act’s] impact on

[the] substitute teachers” in its jurisdiction. Id. Because the local

school systems are seeking more definitive guidance, however, you

Gen. 18] 19

have asked whether daily substitute teachers are categorically

excluded from the Act, such that, as a class, they do not accrue—

and may not use—sick and safe leave.

In our opinion, although many (and perhaps most) daily

substitute teachers will not be entitled to earn sick leave under the

Act, the Act does not categorically exclude all daily substitutes.

The Act provides for only a handful of limited exceptions, and

while one of those exceptions will exclude many daily substitute

teachers, none will exclude all daily substitutes. Although the

legislative history includes evidence suggesting that some

members of the General Assembly may not have intended the Act

to cover daily substitute teachers, that legislative history cannot

override the statutory language, especially when that language is

read in context and in light of the purpose behind the Act.

Moreover, given the remedial purpose of the Act to expand access

to sick leave, we will not read an exception into the statute that

excludes such a wide class of employees from the Act’s

protections. That said, the Commissioner of Labor & Industry,

who is responsible for the implementation of the Act, has at least

some discretion to clarify how certain provisions of the Act will

apply in practice to daily substitutes.

I

Background

A. Daily Substitute Teachers

Maryland’s local school systems employ both long-term

substitute teachers and so-called “daily” substitute teachers to

cover the classes of regular teachers who are absent. 1 As we

comprehend the distinction, long-term substitutes are generally

hired to fill the same assignment for an extended period of time and

are expected to work every day during that assignment, whereas

“daily” substitute teachers are offered assignments on a short-term,

day-to-day basis and are free to decline an assignment for any

1

The school systems also have other substitute employees who are

not teachers, such as substitute lunch and recess monitors and substitute

clerical employees. See, e.g., Howard County Public Schools, Substitute

Teacher Handbook 14. Although there may be questions about whether

those other substitute employees are covered by the Act, this opinion will

focus primarily on substitute teachers, as they were the focus of your

opinion request.

20 [103 Op. Att’y

reason on any particular day. 2 See Stellman Letter at 2. In other

words, daily substitutes work only when they are offered an

assignment and choose, in their discretion, to accept that

assignment. In some cases, daily substitutes will sign up in

advance for an assignment, while in other cases they might be

called on the morning of an assignment. 3 Some daily substitutes

work only sporadically, but many daily substitutes work more

frequently.

School districts have different criteria for classifying

substitute teachers as either long-term or “daily” substitutes, but it

appears that many districts classify a substitute as long-term if he

or she has an assignment that lasts over ten consecutive school

days. See, e.g., Carroll County Public Schools, Substitute Teacher

Handbook 5, https://www.carrollk12.org/admin/hr/employment

opportunities/Documents/CCPS%20Substitute%20Handbook%20

17-18.pdf (long-term status begins with assignment of 10

consecutive days); Washington County Handbook at 7 (long-term

substitute pay begins on the 11th day of assignment to replace the

same regular teacher); Howard County Handbook at 13 (long-term

substitute pay begins on 11th consecutive day for same teacher in

the same assignment); but see Harford County Public Schools,

Substitute Teacher Handbook 6, http://www.hcps.org/departments/

docs/humanresources/SEMS/Handbook.pdf (long-term positions

are for a minimum of 16 days). The school systems believe that

long-term substitute teachers are entitled to sick leave under the

Act but question whether the same is true of daily substitutes. See

Stellman Letter at 2.

2

There is also a third category of substitute teachers: teachers who

are regular, full-time employees of the school system but, rather than

being assigned to one particular classroom every day, work where

needed to fill in for absent teachers. Those substitute teachers, as we

understand it, already receive sick leave.

3

Daily substitute teachers may cancel an assignment, but at least some

school systems reserve the right to remove a substitute from the approved

list if that substitute frequently cancels assignments at the last minute.

See, e.g., Howard County Handbook at 9; Washington County Public

Schools, Substitute Teacher Handbook at 4, http://wcpshr.com/sites/

wcpshr.com/files/documents/2018%20Substitute%20Teacher%20

book.pdf.

Gen. 18] 21

B. Statutory Background

The General Assembly passed the Maryland Healthy

Working Families Act during the 2017 legislative session, see H.B.

1, 2017 Leg., Reg. Sess., but the bill was vetoed by the Governor.

After the Legislature voted to override the veto at the beginning of

the 2018 session, the statute went into effect on February 11, 2018.

See 2018 Md. Laws, ch. 1; see also Md. Const., Art. II, § 17(d)

(providing that “[a]ny 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.”).

Under the Act, an employer generally must provide its

employees with earned “sick and safe leave.” LE § 3-1304. That

leave “shall accrue at a rate of at least 1 hour for every 30 hours an

employee works.” LE § 3-1304(b). But employees are not entitled

to accrue leave during any two-week pay period “in which the

employee worked fewer than 24 hours total,” or during any one-

week pay period if the employee worked fewer than 24 hours

combined over the current and previous pay period. LE § 3-

1304(c)(5). Alternatively, instead of providing for accrued leave,

an employer “may award to an employee the full amount” of leave

that the employee “would earn over the course of the year” at the

beginning of the year. LE § 3-1304(d). 4

The Act also outlines the circumstances under which

employees are allowed to use their leave. An employer “shall

allow” employees to use the sick and safe leave they have earned

and accrued: to care for their own illness, injury, or condition; to

care for a family member; to obtain preventative medical care for

themselves or their family; for parental leave; or for certain

necessary absences “due to domestic violence, sexual assault, or

stalking committed against” them or a family member. LE § 3-

1305(a). When the need to use the leave is “foreseeable,” the

employer may “require an employee to provide reasonable advance

notice of not more than 7 days.” LE § 3-1305(b)(1). But, if the

need is not foreseeable, the employee must simply “provide notice

4

Employers are not required to allow an employee to earn more than

40 hours of sick and safe leave in a given year or to allow an employee

to accumulate more than 64 hours at any given time. LE § 3-1304(c).

Employers also are not required to compensate employees for unused

leave. LE § 3-1302(b)(1).

22 [103 Op. Att’y

to [the] employer as soon as practicable.” 5 LE § 3-1305(b)(2). The

employee’s request to use sick leave may be denied if the employee

“fails to provide” the required notice and “the employee’s absence

will cause a disruption to the employer.” LE § 3-1305(b)(3)(i). 6

The Act applies broadly to “employees,” LE § 3-1304(a), but

it exempts some workers from its scope. As an initial matter, the

Act defines “employee” to exclude workers (1) who qualify as

independent contractors under LE § 8-205, (2) who serve as real-

estate brokers paid by commission under LE § 9-222, (3) who are

under the age of 18 “before the beginning of the year,” (4) who are

employed in the agricultural sector under certain circumstances,

(5) who are employed by temporary services agencies when the

agency “does not have day-to-day control over the work

assignments and supervision” of the worker, or (6) who are

“directly employed by an employment agency to provide part-time

or temporary services to another person.” LE § 3-1301(e). Those

six categories of workers, therefore, are not covered by the Act. In

addition, the Act excludes some workers that otherwise meet the

definition of “employee.” As is relevant here, the Act “does not

apply to”: (1) an employee who “regularly works less than 12

hours a week for an employer,” LE § 3-1303(a)(1), or (2) an

employee who “is called to work by the employer on an as-needed

basis in a health or human services industry” and who “can reject

or accept the shift offered by the employer,” “is not guaranteed to

be called on to work by the employer,” and “is not employed by a

temporary staffing agency.” LE § 3-1303(a)(3).

In terms of the applicability of these rules to the local school

systems, “employer” is defined to include “a unit of State or local

government.” LE § 3-1301(f)(1). However, the Act merely

establishes minimum requirements. Thus, the Act generally does

not preempt other laws that provide sick and safe leave benefits that

are “more generous than required” under the Act. LE § 3-

5

The employee must also “generally comply with the employer’s

notice or procedural requirements for requesting or reporting other leave,

if those requirements do not interfere with the employee’s ability to use

earned sick and safe leave.” LE § 3-1305(b)(2)(ii).

6

The Act allows an employer to “adopt[] and enforc[e] a policy that

prohibits the improper use of earned sick and safe leave, including

prohibiting a pattern of abuse of sick and safe leave.” LE § 3-1302(b)(5).

Gen. 18] 23

1302(b)(3). 7 Similarly, the Act does not “require an employer to

modify an existing paid leave policy” where that policy either

“permits an employee to accrue and use leave under terms and

conditions that are at least equivalent” to those in the Act, or “does

not reduce employee compensation for an absence due to sick or

safe leave.” LE § 3-1302(b)(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 unit’s law, regulations, policies,

and procedures” for “accrual and use of sick leave,” “grievances,”

and “disciplinary actions,” instead of the Act. LE § 3-1303(c).

Finally, the Act provides a mechanism for enforcement. If an

employee believes an employer has violated the Act, “the

employee may file a written complaint” with the Commissioner of

Labor and Industry (the “Commissioner”) within the Department

of Labor, Licensing and Regulation (“DLLR”). LE § 3-1308(a).

The Commissioner then conducts an investigation and attempts to

“resolve the issue informally through mediation.” LE § 3-

1308(b)(1). In the event that the Commissioner cannot resolve the

issue through mediation and finds that an employer has violated the

Act, the Commissioner “shall” order the “payment of the full

monetary value of any unpaid earned sick and safe leave and any

actual economic damages.” LE § 3-1308(b)(2)(i), (ii)2. The

Commissioner also has discretionary authority to require the

employer to pay “up to three times the value of the employee’s

hourly wage for each violation” or to “assess a civil penalty of up

to $1,000 for each employee for whom the employer is not in

compliance” with the Act. LE § 3-1308(b)(2)(ii)3, 4.

If an employer does not comply with the Commissioner’s

order, the Commissioner may bring an action in circuit court to

enforce the order or (if the employee consents) may ask the

Attorney General to bring an action on the employee’s behalf. LE

§ 3-1308(c)(2)(i). Alternatively, an employee may bring his or her

own civil action to enforce the order. LE § 3-1308(c)(2)(ii). But

neither the Commissioner nor an employee may bring a civil action

under the Act other than to enforce an order issued by the

7

The Act does preempt “the authority of a local jurisdiction to enact

a law on or after January 1, 2017, that regulates sick and safe leave

provided by an employer other than the local jurisdiction.” LE § 3-

1302(d)(1). That provision grandfathered a paid sick leave ordinance

enacted by Montgomery County, which continues to apply in that county

to the extent that it is more generous than the Act.

24 [103 Op. Att’y

Commission. See LE § 3-1308. Finally, the Commissioner may

adopt regulations “necessary to carry out” the provisions of the Act.

LE § 2-106(b)(3).

C. Legislative History

The Act was originally introduced as House Bill 1 at the

beginning of the 2017 legislative session. As introduced, the bill

provided that it would not apply to an employee who “regularly

works less than 8 hours a week,” but did not include any express

exception for employees working on an on-call or as-needed basis.

See H.B. 1 (first reader). During the hearings on the bill, two

school systems submitted written testimony based on an apparent

belief that the bill, as drafted, would apply to daily substitute

teachers. Those school systems expressed concerns about the

financial and practical consequences if daily substitutes were

covered by the law. For example, the Anne Arundel County School

System urged an unfavorable report, testifying that:

House Bill 1 is an unfunded mandate with

significant fiscal implications. This bill

would apply to temporary employees,

including substitute teachers. Currently,

substitute teachers receive an invitation to

work at a school, and they have the ability to

accept or reject the assignment based upon

their needs and interests. Under House Bill 1,

Anne Arundel County Public Schools and

local school systems in the State would be

required to provide sick leave for these

substitute teachers and other temporary

employees at an increased cost to local school

systems. The costs would be significant.

Under this bill school systems would be

required to cut resources from other places in

order to afford leave for individuals in their

system who currently do not receive leave,

and can choose to not work on certain days.

Hearing on H.B. 1 Before the House Econ. Matters Comm., 2017

Leg., Reg. Sess. (Feb. 10, 2017) (written testimony of the Anne

Arundel County Board of Education). Similarly, the Harford

County Board of Education testified:

This bill would provide leave benefits to all

budgeted staff working at least .5 FTE [i.e.,

Gen. 18] 25

Full-Time Equivalent] to accumulate paid

sick leave. It should be noted that staff

working below .5 FTE are typically con-

sidered to be substitutes. A substitute receives

an invitation to work and has the ability to

accept or reject the assignment based upon

her/his needs and interest. This raises the

question, would the employer be compelled to

pay accumulated sick and safe leave to the

substitute (and all subsequent invited

substitutes) that reject the assignment? It is

estimated that payment of sick and safe leave

could cost an additional $56,000 per year [in]

salary costs. . . .

Paid leave benefits are given at the beginning

of the fiscal year for use during the year. We

would not be able to determine and front-load

the amount of sick and safe leave hours

individuals would earn over the course of the

year. Communication and administration of a

different leave practice for staff whose work

hours are fewer than those covered under our

collective bargaining agreements would be

difficult. It would require additional program-

ming of our leave administration [and] payroll

systems and pose an increased work burden

on staff to monitor and assure compliance.

Id. (written testimony of the Harford County Board of Education).

During the hearings, representatives of employers in other

sectors expressed similar concerns that the bill, as drafted, would

apply to on-call workers in their sectors. See id.; see also Hearing

on S.B. 230 Before the Senate Finance Comm., 2017 Leg., Reg.

Sess. (Feb. 9, 2017). 8 For example, the Maryland-National Capital

Homecare Association (“MNCHA”) requested an amendment to

exempt so-called pro re nata (“PRN”) employees in the healthcare

industry, explaining that “[i]t is a well-known practice in the

medical field” for employers to use “‘PRN’ employees,” who

“work[] when called to fill in for an absent employee or to cover a

special situation or contract[] to work a certain number of hours

although not always the same days or hours.” Hearing on H.B. 1

(written testimony of MNCHA). Similarly, the Society for Human

8

Senate Bill 230 was the cross-filed version of House Bill 1.

26 [103 Op. Att’y

Resource Management raised concerns about the applicability of

the Act to PRN employees in hospitals, explaining that “[a] hospital

regularly employs per diem staff,” who “may be regularly

scheduled to work at least eight hours per week some weeks and/or

for a limited duration but not on a regular basis.” Id. (written

testimony of the Society for Human Resource Management). 9

After the hearings, the General Assembly amended the bill to

expressly exclude certain on-call employees employed on an as-

needed basis in “a health or human services industry.” H.B. 1 (third

reader). The purpose of this amendment, according to a summary

document prepared by the Department of Legislative Services, was

to “exempt ‘PRN’ workers.” House Bill 1 Summary – Maryland

Healthy Working Families Act, H.B. 1, 2017 Leg., Reg. Sess. at 4

(comparing House Bill 1 with the Senate’s amendments). The

summary document further noted that:

Nurses, X-ray technicians, respiratory

therapists and many other healthcare workers

“work PRN,” which stands for “pro re nata,”

a Latin phrase that roughly translates to “as

needed” or “as the situation arises.” A PRN

employee works when called, to fill in for an

absent employee or to cover a special

situation. PRN gives regular employees a

chance to make extra money, but some skilled

medical workers prefer working PRN because

it gives them freedom to choose shifts and

assignments.

Id. Although daily substitute teachers have many of the same

characteristics as PRN workers in the healthcare industry, the

amendments to the bill made no reference to daily substitute

teachers or to the education industry.

9

See also Hearing on H.B. 1 (written testimony of the Community

Behavioral Health Association (explaining that “our members rely on

on-call staff to fill open shifts,” and those staff “have the discretion to

accept or refuse any shift offered”)); id. (written testimony of Shepherd’s

Staff In-home Care, LLC (explaining that “[m]ost of our employees are

caregivers who work with clients on an as-needed basis”)); id. (written

testimony of the Visiting Angels (explaining that many caregivers

providing aid to seniors work “PRN” and supporting an exemption for

PRN employees)); id. (written testimony of Kaiser Permanente).

Gen. 18] 27

Then, during the debate over the bill (as amended) on the

Senate floor, Senator King had the following colloquy with Senator

Middleton, the floor leader for the bill and the sponsor of the cross-

filed Senate version:

Senator King: Can I ask a question of the

floor leader?

Senator Middleton: You certainly may.

Senator King: I’ve had some questions about

substitute teachers for the school systems and

whether they are covered. Can you address

that for me?

Senator Middleton: Certainly, this question

came up before the Committee. The way

substitute teachers are, many school systems

have substitute teachers on call, you sign a list,

and when there’s an absent teacher you call

that person. They can come in or they don’t.

This bill does not apply to those. But some of

your larger jurisdictions actually have

workers that sign up as substitute teachers.

They’re there – when the school system calls

them, they’re there to work. Those are regular

employees of the school system. They’re paid

differently than regular substitute teachers.

Those teachers, just like all other county

employees that don’t have a sick leave

benefit, now get a benefit under this bill. So

they would be entitled to the same benefit that

other contractual employees of the school

system would have.

Senator King: Okay, but if I’m a substitute

teacher that comes in and substitutes maybe a

day a week or maybe four or five times a

month, they’re not covered, correct?

Senator Middleton: If they call you and you

have an option of coming in or not, no, you’re

not covered.

Senator King: Okay. Alright, thank you.

Senate Proceedings No. 56, 2017 Leg., Reg. Sess. (March 31,

2017).

28 [103 Op. Att’y

The bill, as amended, passed both houses of the General

Assembly. The Governor vetoed the bill, but when the General

Assembly returned for its next legislative session, the Legislature

overrode the veto. Because a bill enacted over the Governor’s veto

ordinarily goes into effect 30 days after the legislative override, see

Md. Const., Art. II, § 17(d), the Legislature considered a separate

bill that would have delayed the effective date of the Act until July

1, 2018. See S.B. 304, 2018 Leg., Reg. Sess.

As the General Assembly considered that legislation, the

Maryland Association of Boards of Education (“MABE”)

requested “an amendment to treat daily, on-call as-needed,

employees in the public school setting in the same manner as daily

on-call as-needed employees in the health and human [services]

industries.” Hearing Before the Senate Finance Comm. on S.B.

304, 2018 Leg., Reg. Sess. (Jan. 24, 2018) (written testimony of

MABE). The amendment would have changed the health-or-

human-services exception to read: “is called to work by the

employer on an as-needed basis in a health or human services

industry, or by a county board of education.” Id. (emphasis in

original). In support of its proposed amendment, MABE expressed

concern that the law as enacted would be “very likely” to “trigger”

paid sick leave requirements for “thousands of daily substitute

teachers.” Hearing Before the House Econ. Matters Comm. on S.B.

304, 2018 Leg., Reg. Sess. (Feb. 13, 2018) (testimony of John

Woolums, Dir. of Gov’t Relations for MABE). In response,

Delegate Dereck Davis, one of the sponsors of the sick leave law

during the prior session, stated that:

There’s sort of been a lot of, I guess,

confusion, if you will, as it relates to whether

or not this even applies to substitute teachers.

I don’t want to speak for them because I don’t

have it before me—or speak for him because

I don’t have it before me—but I think the

Attorney General [in the advice letter from the

Counsel to the General Assembly] raised

serious doubt as to whether or not this applies.

I do know, or I believe, one of the tests for an

independent contractor, which is what I

believe they are . . . they have to show up

every day, the hours and so forth. A substitute

teacher does not have to show up every day.

A substitute teacher essentially chooses their

own hours. If they call . . . if you call me,

Dereck Davis, and say I need you to come in

Gen. 18] 29

on Tuesday and sub, I can go, n[o], I’m going

to the beach on Tuesday. I’m available the

rest of the week. That’s starting to sound like

an independent contractor and not an

employee. So I think substantial doubt exists

as to whether or not this even applies to

substitute teachers.

Id. (statement of Del. Davis). Neither the House nor the Senate

adopted MABE’s proposed amendment and, in any event, the bill

delaying the Act’s effective date did not pass. The Act went into

effect in February of 2018.

II

Analysis

Your question requires us to interpret the Maryland Healthy

Working Families Act to determine if daily substitutes are

categorically excluded from the Act’s requirements. In analyzing

that question, we apply the familiar principles of statutory

construction used by the Maryland courts. 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). “To

ascertain the intent of the General Assembly, we begin with the

normal, plain meaning of the statute,” State v. Bey, 452 Md. 255,

265 (2017) (internal quotation marks omitted), reading the words

in accordance with “their natural and ordinary meaning.” Davis v.

State, 426 Md. 211, 218 (2012). But we do not read the words of

the statute “in a vacuum.” Lockshin v. Semsker, 412 Md. 257, 275

(2010). Instead, we interpret the 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.”

Id. at 276. If the statutory language, read in context, “is

unambiguous and clearly consistent with the statute’s apparent

purpose,” the inquiry will “ordinarily” end, “and we apply the

statute as written, without resort to other rules of construction.” Id.

at 275.

If, however, the statute is ambiguous, we must “resort to other

recognized indicia” of legislative intent, such as “the structure of

the statute . . .; how the statute relates to other laws; the legislative

history, including the derivation of the statute, comments and

explanations regarding it by authoritative sources during the

legislative process, and amendments proposed or added to it; the

general purpose behind the statute; and the relative rationality and

30 [103 Op. Att’y

legal effect of various competing constructions.” Witte v. Azarian,

369 Md. 518, 525-26 (2002). In doing so, we must avoid

interpretations that are “absurd, illogical, or incompatible with

common sense.” Lockshin, 412 Md. at 276. Finally, where a

statute is “remedial in nature,” it must be “liberally construed . . .

to effectuate [its] broad remedial purpose,” and any “exemptions

from remedial legislation must be narrowly construed.” Lockett v.

Blue Ocean Bristol, LLC, 446 Md. 397, 424 (2016) (internal

quotation marks omitted) (alteration in Lockett).

A. Are Daily Substitutes “Employees” Under the Act?

The threshold question is whether daily substitute teachers are

“employees” within the meaning of the Act. In our opinion, they

are. “Employee” is a broad term, the ordinary meaning of which

easily encompasses substitute teachers. See Webster’s

Encyclopedic Unabridged Dictionary 638 (1996) (defining

“employee” as “a person working for another person or a business

firm for pay”). The only way in which the Act limits that ordinary

meaning of employee is by specifying that, for purposes of the Act,

the term “employee” does not include an individual who: (1) works

as an independent contractor under § 8-205 of the Labor &

Employment Article, (2) works as a real-estate broker or

salesperson not covered by Title 9 of the Labor & Employment

Article, (3) is under the age of 18, (4) is employed in certain

agricultural sectors, (5) performs certain work through a temporary

services agency, or (6) works for an employment agency to provide

part-time or temporary services to another person. LE § 3-1301(e).

None of those categories encompass daily substitute teachers;

therefore, daily substitutes are “employees” within the meaning of

the Act. See, e.g., Rose v. Fox Pool Corp., 335 Md. 351, 360 (1994)

(“It is well settled that where a statute specifically lists certain

classes of persons as excluded from coverage, the express

exclusion of certain persons raises the inference that all other

persons not excepted are within the statute’s coverage.”).

Although daily substitutes may be similar in some ways to

independent contractors, they do not meet the legal criteria for

independent contractors under LE § 8-205. That provision

classifies workers as independent contractors only if, among other

things, they perform their work “free from control and direction

over [their] performance.” LE § 8-205(a)(1). But, unlike

independent contractors, daily substitutes are subject to significant

“control and direction” over their work by their employers. See,

e.g., Harford County Handbook at 2-5, 7-20 (outlining detailed

policies and procedures for substitute teachers); Howard County

Handbook at 6-11, 14-17 (same); Washington County Handbook

Gen. 18] 31

at 6-19 (same). Thus, daily substitutes are not independent

contractors and—because none of the other statutory exclusions

from the definition of “employee” apply to them either—they are

“employees.” 10

B. Do Any of the Act’s Exceptions Categorically Exclude Daily

Substitutes?

Because a daily substitute is an “employee” under the Act, we

next consider whether daily substitute teachers are among those

“employees” who fall within other exceptions from the Act. Two

such exceptions are potentially relevant here: the exception for

employees who “regularly work[] less than 12 hours a week,” LE

§ 3-1303(a)(1), and the exception for “as-needed” employees in “a

health or human services industry,” LE § 3-1303(a)(3). We will

analyze each in turn.

1. Employees Who “Regularly Work Less than 12 Hours a

Week”

The first of these exceptions provides that the Act “does not

apply to” an employee who “regularly works less than 12 hours a

week for an employer.” LE § 3-1303(a)(1). As an initial matter,

we note that regardless of how this statutory language is

interpreted, at least some daily substitute teachers will

unquestionably fall within the exception. For example, a substitute

teacher who generally works for a school system just one 8-hour

day each week will “regularly work[] less than 12 hours a week”

under any possible interpretation of that phrase. But you have

asked whether daily substitute teachers are categorically exempt

from the Act. To determine whether this exception categorically

excludes daily substitutes, we start with the “natural and ordinary

meaning” of the statutory language, Davis, 426 Md. at 218, keeping

in mind the surrounding context and “the purpose, aim, or policy

10

The local school systems seem to concur that substitute teachers are

their “employees.” See Stellman Letter at 2. Although Delegate Davis

(one of the sponsors of the Act in 2017) speculated during the next

legislative session that daily substitutes might be independent

contractors, “little weight is to be accorded to post-enactment statements

of legislative intent, even by the legislators who passed the particular

law.” Building Materials Corp. of Am. v. Board of Educ. of Baltimore

County, 428 Md. 572, 592 (2012). In any event, the plain language of

the statute makes clear that daily substitutes are employees rather than

independent contractors.

32 [103 Op. Att’y

of the Legislature in enacting the statute,” Lockshin, 412 Md. at

275.

In our opinion, the most natural way to read the phrase

“regularly works less than 12 hours a week” is that “regularly”

means “usually [or] ordinarily,” 11 or “[c]ustomar[il]y, usual[ly], or

norma[ly],” 12 such that part-time employees are not covered by the

Act when they usually work fewer than 12 hours a week. See

Montgomery County v. Deibler, 423 Md. 54, 67 (2011) (explaining

that it is “useful” to start with dictionary definitions, though such

definitions do not “provide dispositive resolutions of the meaning

of statutory terms” (internal quotation marks omitted)); see also

Smith v. Yurkovsky, 265 Conn. 816, 827 (2003) (interpreting the

phrase “regularly employed . . . over twenty-six hours per week” in

a workers’ compensation statute to “mean[] that [an employer]

usually” employs the worker over twenty-six hours per week, or

that he “does so most of the time, so that such employment

becomes the rule and not the exception” (internal quotation marks

omitted; emphasis omitted)); Thomas Bros. v. Cargill, Inc., 276

Mont. 105, 110-11 (1996) (interpreting “regular work” to mean

“that which [an employee] does normally, typically or naturally,”

in accordance with the “plain meaning” of “regular” as “normal,

typical or natural” (internal quotation marks omitted)).

Indeed, that interpretation has already been adopted by the

administrative agency charged with administering the Act; the

Commissioner of Labor & Industry has advised that employers

should “us[e] the everyday meaning of the word” regularly, “which

is ‘normal or customary,’” in construing the Act. DLLR, Maryland

Healthy Working Families Act: Frequently Asked Questions

(March 9, 2018), http://www.dllr.state.md.us/paidleave/

paidleavefaqs.pdf. The Commissioner’s interpretation, though not

promulgated by regulation, is entitled to at least some deference,

and it reinforces our own sense of the most natural meaning of the

exception. See Stachowski v. Sysco Food Servs. of Baltimore, Inc.,

402 Md. 506, 517 (2007) (explaining that agency interpretations of

the statutes they administer are ordinarily entitled to deference,

though the precise weight afforded depends on several factors,

including whether the agency has made that interpretation by

regulation). Under that most natural reading, the Act does not

categorically exclude all daily substitute teachers because at least

11

Webster’s Encyclopedic Unabridged Dictionary 1624 (1996).

12

The American Heritage Dictionary 1041 (2d ed. 1985).

Gen. 18] 33

some of them will usually work 12 hours a week or more. See

Stellman Letter at 2.

The school systems suggest that “regularly” might have a

different meaning in this context, positing that the Legislature’s use

of the word could reflect an intent to exclude from the Act all

employees, like daily substitute teachers, who lack a regular work

schedule and are not expected to work a set number of hours each

week. See Stellman Letter at 5. In other words, under that

alternative interpretation, an employee without a set schedule and

set hours might “regularly work” zero hours a week, such that the

employee always falls within the statutory exclusion no matter how

many hours the employee actually works. For the reasons

explained below, although there are some definitions of “regularly”

that could be read in the abstract to support such an interpretation,

that interpretation would not be consistent with either the language

of the statute in context or with the purposes behind the Act.

We recognize that alternative uses of the word “regularly”

could arguably imply that an employee must have a fixed schedule

to be covered by the Act. See, e.g., Webster’s Encyclopedic

Unabridged Dictionary 1624 (1996) (defining “regularly” to

sometimes mean “at regular times” or “according to plan, custom,

etc.”); The American Heritage Dictionary 1041 (2d ed. 1985)

(including, as a definition of “regular,” “[c]onforming to set

procedure,” “[c]onstant” or “not varying”). In keeping with those

definitions, Maryland courts have sometimes interpreted

“regularly” to suggest a fixed course of conduct. As the Court of

Appeals put it in one case, the word “regularly” tends to mean “in

a regular manner or in accordance with some prescribed or adopted

rule or order[,]” which “‘implies method, continuity and

consistency, and excludes the idea of incidental, occasional, or

casual service or use.’” Comptroller v. M.E. Rockhill, Inc., 205

Md. 226, 235 (1954) (citing Carter v. Reardon-Smith Line, 148

Md. 545, 559 (1925)); see also Allstate Ins. Co. v. Humphrey, 246

Md. 492, 497 (1967) (listing several dictionary definitions of

“regular,” some of which imply that regular actions take place at

fixed times or at fixed intervals); Hodgson v. Flippo Const. Co.,

164 Md. App. 263, 270 (2005) (finding that “[t]he word ‘regular’

34 [103 Op. Att’y

implies a uniform course of conduct” (quoting McElroy Truck

Lines, Inc., v. Pohopek, 375 Md. 574, 577 (2003)). 13

Nonetheless, after considering the words of the Act in context

and reading them in light of the Act’s purpose, we do not believe

that the General Assembly intended to categorically exclude all

employees who do not work a regular schedule or a set number of

hours per week. In our view, the context surrounding the word

“regularly” in the statute more strongly supports reading the term

in accordance with its ordinary meaning as “usually,” rather than

as requiring a fixed schedule. After all, creating an exception for

employees who “regularly work less than 12 hours a week” would

be an awkward way to exclude all employees who do not work

according to a set schedule or set hours, given that the exception

establishes a threshold based on the hours an employee works, not

the hours for which the employee is scheduled.

What is more, reading the exception to apply only to those

employees who usually work less than 12 hours a week is far more

consistent with the purpose of the Act. See Floor Report H.B. 1,

2017 Leg., Reg. Sess. at 10 (explaining that the Act is “needed”

because “[m]any Marylanders lack the ability to take a day off

when they are sick” and noting that the bill will provide new sick

leave benefits to “almost 800,000 Maryland workers”). A remedial

statute, like the Act, must be “liberally construed . . . to effectuate

[its] broad remedial purpose,” and any “exemptions” from the

statute “must be narrowly construed.” Lockett, 446 Md. at 424

(internal quotation marks omitted); see also Pak v. Hoang, 378 Md.

315, 325 (2003) (explaining that “statutes are remedial in nature

if,” for example, “they are designed to correct existing law, to

redress existing grievances and to introduce regulations conducive

to the public good” (internal quotation marks and citation

13

However, it is worth noting that, even under these definitions of

“regularly,” it is not clear that every employee without a regular schedule

of some kind would be excluded from the Act. Rather, a substitute

teacher who almost always works more than 12 hours a week would be

engaging in a “uniform course of conduct,” Hodgson, 164 Md. App. at

270, and would be doing so with “method, continuity and consistency,”

M.E. Rockhill, Inc., 205 Md. at 235, regardless of whether that substitute

had a fixed schedule or guaranteed hours. Defining “regularly” to

require a uniform course of conduct, therefore, still would not

categorically exclude all daily substitute teachers from the Act’s

protections.

Gen. 18] 35

omitted)). 14 Applying those principles here, we must interpret the

exception narrowly to further the legislative goal of securing sick

leave for tens of thousands of previously unprotected Marylanders.

Reading the statute to categorically exclude all employees without

a regular schedule would not further that purpose and would deny

the Act’s protections not just to daily substitute teachers, but to

many other workers as well.

Indeed, a significant percentage of employees have an

irregular work schedule, in sectors as diverse as the entertainment,

retail, personal services, real estate, and transportation industries.

See Economic Policy Institute, Irregular Work Scheduling and Its

Consequences, at 1, 2 (April 9, 2015), https://www.epi.org/files/

14

In some instances, the Court of Appeals seems to define “remedial”

statutes more narrowly to mean just “those which provide a remedy, or

improve or facilitate remedies already existing for the enforcement of

rights and the redress of injuries” and that “do[] not affect substantive or

vested rights.” Johnson v. Mayor & City Council of Baltimore, 430 Md.

368, 385 (2013) (quoting Langston v. Riffe, 359 Md. 396, 408-09

(2000)); see also Langston, 359 Md. at 409 (noting that an act “is

remedial in nature when it provides only for a new method of

enforcement of a preexisting right” (internal quotation marks omitted)).

However, the Court seems to use that definition of “remedial” only when

determining whether legislation should apply retroactively. See

Johnson, 430 Md. at 381-82 (explaining that legislation governing

procedures or remedies, unlike most legislation, is presumed to apply

retroactively). When instead determining whether statutory language

should be construed broadly to advance a remedial purpose, the courts

have characterized remedial statutes to include those “designed to correct

existing law, to redress existing grievances and to introduce regulations

conducive to the public good.” 70 Opinions of the Attorney General 87,

90 (1985) (quoting State v. Barnes, 273 Md. 195, 208 (1974)). In fact,

in Johnson, the Court held that an amendment to the Workers’

Compensation Act was not “remedial” and should not be applied

retroactively, while at the same time acknowledging that the Workers’

Compensation Act, as a whole, “is a remedial statute” that should be

construed liberally to advance its “benevolent purposes.” 430 Md. at 377

(internal quotation marks omitted). In any event, this statutory exception

for employees who “regularly work[]” less than 12 hours a week must

be read narrowly because, generally speaking, “‘[w]hen a general

provision in a statute has certain limited exceptions, all doubts should be

resolved in favor of the general provision rather than the exceptions.’”

Blue v. Prince George’s County, 434 Md. 681, 695 (2013) (quoting

Norman J. Singer and J.D. Shambie, Sutherland Statutes and Statutory

Construction § 47:11 (2013) (internal footnote omitted in Blue; alteration

in Blue)).

36 [103 Op. Att’y

pdf/82524.pdf. According to one estimate, for instance, “about 10

percent of the workforce” in the United States does not have regular

hours or regular schedules. Id. at 1. Those workers are also often

among our society’s most vulnerable, given that low-income

workers are more likely to have irregular work schedules. Id. at 1,

10. In the absence of any clear indication that the Legislature

intended to exclude such a wide swath of workers en masse from

this remedial statute, we will not read that exception into the

statute. We “cannot assume authority to read into the [statute] what

the Legislature apparently deliberately left out.” Walzer v.

Osborne, 395 Md. 563, 584 (2006) (internal quotation marks

omitted). 15 For all of these reasons, we think the best reading of

the statutory language is the most natural one: that an employee

“regularly works less than 12 hours a week” when the employee

usually or normally works fewer than 12 hours.

Of course, in some cases, it may be difficult to determine

whether an employee without a regular work schedule usually

works less than 12 hours a week. Thus, the Commissioner will

likely need to issue more comprehensive guidance on that topic. 16

But the mere fact that the statute is ambiguous as applied to some

situations does not mean that it is ambiguous as applied to the

question here, that is, whether it categorically exempts daily

substitute teachers. Cf. Allstate Ins. Co., 246 Md. at 496

(explaining that the fact “[t]hat a term [in a contract] cannot be

precisely defined so as to make clear its application in all varying

factual situations does not mean that it is ambiguous” as applied to

15

Requiring employees to have a regular work schedule or guaranteed

hours would also lead to other results that the Legislature likely did not

intend. Such a requirement, for instance, might call into question

whether employees who nearly always work a full 40-hours per week

should be excluded from the Act merely because they are not guaranteed

to work that many hours or because their weekly schedule is irregular.

Similarly, if the statute required an employee to have a regular schedule

in order to earn sick leave, some employers would have an incentive to

exclude their employees from coverage simply by refusing to provide

those employees with a regular work schedule.

16

In particular, the Commissioner may need to clarify how the Act is

going to apply to new employees, including new daily substitute

teachers, when it is not yet clear how many hours per week that employee

will regularly work. Although it may be relatively easy to determine

whether an employee regularly works less than 12 hours a week if that

employee has a long work history with his or her employer, the same

may not be true with respect to new employees without that same work

history.

Gen. 18] 37

the circumstance at issue). The language of the exception, read in

context and in light of the Act’s purpose, does not support a blanket

exclusion of all daily substitute teachers.

The legislative history, on balance, seems to confirm our

conclusion as to the meaning of this exemption, or at the very least

does not contradict it. See, e.g., State v. Roshchin, 446 Md. 128,

140 (2016) (explaining that even in instances “when the language

is unambiguous, it is useful to review legislative history of the

statute to confirm that interpretation”). Despite an indication that

some members of the General Assembly did not expect daily

substitute teachers to be covered, the legislative record does not

establish that the Legislature as a whole intended the exemption for

employees who “regularly work[] less than 12 hours a week” to

exclude all daily substitutes or all employees who lack a regular

schedule.

As an initial matter, the Act’s Fiscal & Policy Note suggests

that substitute teachers were going to be covered by the Act. The

fiscal note warned that, under the Act, the Montgomery County

public school system would “incur a substantial cost” to provide

paid sick leave to “3,500 short-term substitute teachers” who were

not already covered by the county’s preexisting paid sick leave

legislation. 17 Revised Fiscal & Policy Note, H.B. 1, 2018 Leg.,

Reg. Sess. at 13. Although the fiscal note did not use the term

“daily substitutes,” the phrase “short-term” substitutes seems to

refer to the same category of teachers. Thus, legislators reading the

fiscal note would likely have understood the Act to cover at least

some daily substitutes. 18

17

The County’s legislation, unlike the Act, included an express

exemption for certain workers who “[do] not have a regular work

schedule with the employer” and have to “contact[] the employer for

work assignments.” Mont. Co. Code § 27-76(b).

18

The two school districts that submitted written testimony opposing

the bill seemed to have the same understanding that the bill, at least as

originally drafted, would cover at least some daily substitute employees

even though they lacked a fixed schedule. See, e.g., Hearing on H.B. 1

(written testimony of Anne Arundel County and Harford County Boards

of Education). Although the testimony of private parties during

committee hearings—particularly those that opposed the legislation—is

not always reliable evidence of legislative intent, the testimony here

confirms our understanding of the fiscal note.

38 [103 Op. Att’y

Similarly, the reference to Montgomery County’s ordinance

reinforces that, had the General Assembly wanted to exclude all

employees without a regular schedule, it had two models for how

to accomplish that goal: (1) Montgomery County’s law, which

included an express exemption for certain on-call workers who lack

“a regular work schedule,” Mont. Co. Code § 27-76(b), and (2) a

bill proposed by the Governor as an alternative to the Act that

would have similarly exempted some on-call workers who do “not

have a regular work schedule with the employer.” H.B. 382, 2017

Leg., Reg. Sess. (first reader). Yet the Legislature chose not to use

that language, excluding only those employees who “regularly

work[]” less than 12 hours a week (as well as a narrow subset of

on-call, as-needed employees “in a health or human services

industry”). See LE § 3-1303(a). That choice again suggests that

§ 3-1303(a)(1) does not categorically exclude all employees

without a regular work schedule or set hours. 19

To be sure, some legislative history points in the other

direction. Senator Middleton, who was the floor leader for the bill

and a sponsor of the cross-filed Senate bill, suggested on the Senate

floor that daily substitute teachers were not covered by the Act. See

Senate Proceedings No. 56 (March 31, 2017); see also Part I.C,

supra. The “[s]tatements of [a] legislator acting as floor manager

[or as] co-sponsor of the bill . . . while not conclusive on legislative

intent, are generally accorded some weight by the courts in

determining the meaning of a statute.” 87 Opinions of the Attorney

General 106, 113 n.6 (2002); see also Davis, 426 Md. at 231 n.7

(explaining that courts rely on testimony by bill sponsors as reliable

evidence of legislative intent, “especially where there were

19

The General Assembly’s decision to include a specific exemption

for certain on-call employees suggests that it did not understand the

exception for employees who regularly work less than 12 hours a week

to categorically exclude such on-call employees. If those employees

were already excluded by the “regularly works” language, the General

Assembly presumably would not have needed to include the “health or

human services industry” exemption. However, there was at least some

evidence in the legislative record that on-call workers in the health and

human services industries sometimes have a set schedule “for a limited

duration,” see Hearing on H.B. 1 (written testimony of the Society for

Human Resource Management), or work a set number of hours for a

limited period of time, see id. (written testimony of MNCHA), so it is at

least possible that the General Assembly included the “health or human

services” exemption to clarify that those on-call workers would be

excluded from the statute even when temporarily working regular

schedules. Thus, we do not rely too heavily on this point.

Gen. 18] 39

minimal amendments to the bill . . . after that testimony”). That is

because floor leaders and bill sponsors tend to know the details of

their bills better than other members, so other members will often

rely on their explanations when deciding how to vote. See Jack

Schwartz and Amanda Stakem Conn, The Court of Appeals at the

Cocktail Party: The Use and Misuse of Legislative History, 54 Md.

Law Rev. 432, 446 (1995) (explaining that the testimony of bill

sponsors is “likely to be especially reliable evidence” because it

typically “reflect[s] the views of those most likely to know

something about the legislation and to whom other members, for a

variety of reasons, tend to defer”). 20

Here, Senator Middleton’s statement is entitled to

considerable weight. Because he was both the floor leader and a

sponsor of the cross-filed Senate bill, some senators may have

voted based on the understanding that the bill would not apply to

daily substitute teachers. Taken alone, however, the Senator’s

statement is not conclusive, for at least two reasons. First, his

statement did not purport to interpret the exception for employees

who “regularly work[] less than 12 hours a week” and thus does

not suggest that he read that particular exception to exclude daily

substitute teachers and all other employees who lack a regular work

schedule. Second, it is not clear that Senator Middleton’s statement

was understood by his fellow legislators to suggest that all daily

substitutes would be excluded. Senator Middleton was responding

to a question about whether the Act applied to a hypothetical

substitute teacher who works “maybe a day a week or maybe four

or five times a month.” Senate Proceedings No. 56 (March 31,

2017). But a substitute teacher who works that infrequently will

“regularly work[] less than 12 hours a week” under any possible

definition of the phrase and thus would be excluded from the Act

no matter how the exception were interpreted. Therefore, the

legislative history, considered as a whole, does not appear to

contradict our conclusion as to this exception.

20

Courts do not, however, provide any significant weight to post-hoc

statements made after the enactment of the bill. See Building Materials

Corp. of Am, 428 Md. at 592. Thus, we do not rely on the statements

made by Senator Middleton and Senator King in their letter to us

requesting this opinion that “[w]e believe that it was the intent of the

General Assembly to exclude daily substitute employees who can reject

or accept the shift offered and are not guaranteed to be called to work

from this law.” Letter from the Honorable Nancy J. King and Thomas

McClain Middleton to Brian E. Frosh (March 29, 2018).

40 [103 Op. Att’y

In sum, we conclude that the exception for employees who

regularly work less than 12 hours a week does not categorically

exclude daily substitute teachers from the protection of the Act.

We therefore turn to other provisions in the Act to see if any of

them create a categorical exemption.

2. As-Needed Employees in a Health or Human Services

Industry

The second potentially relevant exception provides that the

Act “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;

(ii) can reject or accept the shift offered by

the employer;

(iii) is not guaranteed to be called on to

work by the employer; and

(iv) is not employed by a temporary

staffing agency.

LE § 3-1303(a)(3). This exception would likely apply to daily

substitute teachers if they were to qualify as employees “in a health

or human services industry,” because they meet all of the other

criteria: they are called to work on an “as-needed basis,” may

“reject or accept” their shifts, are “not guaranteed to be called on

to work” by the school system, and are not “employed by a

temporary staffing agency.” However, for the reasons explained

below, our view is that daily substitute teachers are not employed

“in a health or human services industry” and thus do not fall within

this exception.

To determine the meaning of “a health or human services

industry,” we look first to the “natural and ordinary meaning” of

the phrase. Davis, 426 Md. at 218. In doing so, it is again a “useful

starting point” to examine dictionary definitions of the term.

Deibler, 423 Md. at 67 (internal quotation marks omitted). Here,

although it appears that most dictionaries do not include a

definition for “human services,” there are some dictionaries that

define the term to mean “programs or facilities for meeting basic

health, welfare, and other needs of a society or group, as of the

poor, sick, or elderly.” E.g., Webster’s Encyclopedic Unabridged

Dictionary 931 (1996); The Random House Dictionary of the

English Language Unabridged 931 (2d ed. 1990). While that

Gen. 18] 41

definition is theoretically broad enough to encompass the field of

education—which does, after all, help to provide a societal need—

that is far from the most natural way to read the definition. And

more importantly, such a reading would not be consistent with how

the term “human services” is used and understood elsewhere in

Maryland law.

Rather, in Maryland, the term “human services” is used:

(1) to describe the article of the Code that governs social service

programs, public assistance programs, child protective services,

elder care, help for disabled individuals, and other similar programs

that focus primarily on care for vulnerable or disadvantaged

groups; and (2) to describe the name of the principal department of

the Executive Branch that oversees most of those programs. See

Md. Code Ann., Hum. Servs. § 2-201. In fact, during the same

legislative session that the Legislature passed the sick leave statute

in question, it also changed the name of the former Department of

Human Resources to the “Department of Human Services” so as to

more accurately reflect the agency’s mission. See 2017 Md. Laws,

ch. 205. Therefore, when the General Assembly used the term

“human services industry” in the Act, it more likely had in mind

industries that provide categories of care and assistance similar to

those mentioned in the Human Services Article, rather than the

field of primary and secondary education. 21

21

The human services industry itself seems to have a similar

understanding of the types of fields that comprise “human services.”

See, e.g., National Organization for Human Services, What Is Human

Services?, https://www.nationalhumanservices.org/what-is-human-

services (“‘Human services professional’ is a generic term for people

who hold professional and paraprofessional jobs in such diverse settings

as group homes and halfway houses; correctional, intellectual disability,

and community mental health centers; family, child, and youth service

agencies[;] and programs concerned with alcoholism, drug abuse, family

violence, and aging.”); Arianne Sellers, The New Human Services

Industry: Changing the World for the Profit or For the Better?, Journal

of Social Innovations (Jan. 29, 2013), http://www.socialinnovations

journal.org/editions/issue-13-winter-2013/74-what-works-what-doesnt/

828-the-new-human-services-industry-changing-the-world-for-the-

profit-or-for-the-better (“The human services industry umbrella

encompasses a range of social and behavioral health services, such as

disability programs, youth development, mental health and crisis

intervention, employment and housing and child and family services.

Before the 1960s, these efforts were considered largely governmental.

But through welfare state growth, it became common for nonprofit

42 [103 Op. Att’y

Consistent with that understanding, the General Assembly

has, in other contexts, defined “human services worker” to mean a

“professional employee of any public or private health or social

services agency or provider,” Md. Code Ann., Fam. Law § 14-

101(h), and has defined “human services professional” to include

“social workers,” “professional counselors,” “nurses,” and “school

psychologists,” Hum. Servs. § 4-301(b)(1) (emphasis added), but

not school teachers. Similarly, the General Assembly has often

distinguished between the fields of education and human services.

For instance, the Legislature imposed a requirement to report child

abuse on “health practitioner[s], police officer[s], educator[s], or

human service worker[s],” Md. Code Ann., Fam. Law. § 5-704(a)

(emphasis added), implying that “educator[s]” are not included

within the term “human service worker[s].” See also Fam. Law.

§ 5-701(g) (referring separately to “[e]ducator[s] or human service

worker[s]”); Md. Code Ann., Local Gov’t (“LG”) § 12-402(e)(2)

(providing that “the county commissioners [of Calvert County]

may donate an interest in surplus real property to a private,

nonprofit corporation for educational, human services, housing,

cultural, recreational, or community uses” (emphasis added)); LG

§ 12-406(c)(1) (providing the same power to Charles County); LE

§ 9-6A-09(c)(1) (recognizing that there are different college

degrees offered for the fields of “education” and “human services,”

respectively); but see N.Y. Soc. Serv. Law § 488 (defining “human

services professional” to include a “school official, which includes

. . . school teacher”). Thus, it appears that the Maryland Legislature

generally does not, and would not, understand the term “human

services industry” to encompass substitute teaching for local school

systems. 22

organizations to serve communities through public agency funding, like

Medicaid, with legislative efforts focused on fostering this

partnership.”); HumanServicesEdu.Org, The Definition of Human

Services, https://www.humanservicesedu.org/definition-human-

services.html (defining a human service as “a service that is provided to

people in order to help them stabilize their life and find self-sufficiency

through guidance, counseling, treatment and the providing for of basic

needs”).

22

It also seems unlikely that the General Assembly would have

referred to public education as an “industry.” We recognize, however,

that there may be some situations in which it is difficult to distinguish

between the fields of education and human services. It is at least

possible, for example, that a day-care provider or a teacher for the Head

Start program could be considered part of a human services industry.

Although we do not purport to draw any absolute lines here as to the

Gen. 18] 43

Even assuming for the sake of argument that the statutory

language is ambiguous, we must again construe the statute broadly

and the exception narrowly to further the broad remedial purposes

behind the legislation. Lockett, 446 Md. at 424; see also Blue, 434

Md. at 695 (“When a general provision in a statute has certain

limited exceptions, all doubts [typically] should be resolved in

favor of the general provision rather than the exceptions.” (internal

quotation omitted)). Those principles counsel against any reading

of “human services industry” that would stretch the phrase beyond

its most natural reading to exclude an entire class of employees

from the Act’s protections.

Finally, if we assume the statute is ambiguous, we can also

look to the legislative history. But the legislative history here is

inconclusive. On one hand, the bill file suggests that, in adding the

health-or-human-services exception to the Act, the General

Assembly was responding to specific concerns about PRN

employees raised by groups like MNCHA, the Community

Behavioral Health Association, Shepard’s In-Home Care, the

Visiting Angels, and Kaiser Permanente, all of which naturally fit

within the ordinary meaning of the health or human services

industry. See Part I.C, supra. Along those lines, a summary chart

prepared by DLS explained that the purpose of the provision in

question was to “exempt ‘PRN’ workers,” elaborating that

“[n]urses, X-ray technicians, respiratory therapists and many other

healthcare workers ‘work PRN,’” without mentioning substitute

teachers or education employees. House Bill 1 Summary at 4; see

also Ford Motor Credit Co., LLC v. Roberson, 420 Md. 649, 666

n.13 (2011) (relying on a DLS chart in the bill file); In re Taylor,

312 Md. 58, 66 (1988) (same). 23

meaning of “human services industry” in every context, we see no

indication that the General Assembly would have understood all public

school teachers to be employees in a “human services industry.”

23

The boards of education from Anne Arundel and Harford Counties

also submitted written testimony raising similar concerns about daily

substitute teachers, but there is no indication in the legislative history

that the General Assembly considered their testimony in crafting the

“health or human services” exception. Rather, as the director of

intergovernmental relations for MABE acknowledged during the next

legislative session, the local school systems did not make the full extent

of their concerns about daily substitute teachers clear to the Legislature

until relatively late in the legislative process during the 2017 session.

See Hearing on S.B. 304, 2018 Leg., Reg. Sess. (oral testimony of John

Woolums, MABE).

44 [103 Op. Att’y

On the other hand, we are mindful of Senator Middleton’s

statement on the Senate floor that the Act would not apply to daily

substitute teachers who are “call[ed]” by the school system and

have “an option of coming in or not.” Senate Proceedings No. 56

(March 31, 2017). If he was relying on the health-or-human-

services exemption in § 3-1303(a)(3) to support that view, his

interpretation is entitled to considerable weight in our analysis,

because he was a sponsor of the bill and its floor leader. See Part

II.B.1, supra. Even so, however, the “motivations of a legislative

sponsor may not reflect the intent of the legislative body” as a

whole. 99 Opinions of the Attorney General 31, 47 n.17 (2014).

As explained above, we do not know for sure that other senators

would have understood his remarks to support a categorical

exemption for all daily substitute teachers, rather than just those

who work less than 12 hours a week, see Part II.B.1, supra, and

even if so, we cannot be sure that the House of Delegates shared

that understanding, because no similar statement was made in the

House. Thus, although Senator Middleton’s views provide

important evidence of legislative intent, his statements do not by

themselves establish that the Legislature as a whole intended the

exception for on-call workers in the “human services industry” to

encompass daily substitute teachers.

To be clear, a faithful search for legislative intent when a

statute is ambiguous requires us to give due consideration to

statements by a sponsor about the intended effect of that statute.

But that very same respect for the General Assembly also requires

us to avoid inserting an exception into a statute “where none has

been made by the Legislature” and where the language of the

statute indicates that none was intended. Addison v. Lochearn

Nursing Home, LLC, 411 Md. 251, 277 (2009) (quoting Johnson v.

Mayor and City Council of Baltimore, 387 Md. 1, 15 (2005)); see

also Pappas v. Pappas, 287 Md. 455, 465 (1980) (“A court may

not under the guise of interpretation insert or omit words to make a

statute express an intention not evidenced in its original form.”);

Johnson, 430 Md. at 394 (declining to follow sponsor testimony

where, as here, the bill files included “contradictory” evidence

weighing in both directions, and “the weight of all relevant

considerations dictates the opposite conclusion” from the sponsor’s

testimony). In our opinion, based on the weight of all of the

relevant considerations here, the exception for workers in a “health

or human services industry” does not apply to daily substitute

Gen. 18] 45

teachers, and such teachers are not categorically excluded from the

Act. 24

Still, that does not mean that all, or even most, daily substitute

teachers will be covered by the Act or will accrue sick and safe

leave during each pay period. To the contrary, many (and perhaps

most) daily substitute teachers will “regularly work[] less than 12

hours a week” and thus be exempt from the Act in its entirety. LE

§ 3-1303(a)(1). And even a substitute teacher who usually works

more than 12 hours a week will not accrue leave for any 2-week

pay period “in which the employee worked fewer than 24 hours

total.” LE § 3-1304(c)(5). We merely conclude that daily substitute

teachers are not categorically excluded from the Act.

C. Would Applying the Act to Daily Substitute Teachers Create

an Absurd Result?

Although we believe that the best reading of the statute is that

daily substitute teachers are not categorically excluded, we must

consider whether that interpretation will lead to results that are

“absurd, illogical, or incompatible with common sense.” Lockshin,

412 Md. at 276. At first glance, it might seem strange for school

systems to have to pay two substitute teachers—in addition to a

regular teacher—for the same day of work. But, in our view, there

is nothing absurd about providing paid sick leave to substitute

teachers who regularly work more than 12 hours a week, especially

given that some of those substitutes might work for their school

24

The local school systems also raised the possibility that daily

substitutes might be excluded from the Act under a separate provision

stating that the Act does not “require an employer to modify an existing

paid leave policy” if “the paid leave policy does not reduce employee

compensation for an absence due to sick or safe leave.” LE § 3-

1302(b)(2). However, that provision does not apply to daily substitutes,

because the systems’ current policies do in fact reduce a substitute’s

compensation when the substitute cancels or declines a job. After all, a

substitute is not paid if the substitute does not work, so the loss of a work

day necessarily reduces the substitute’s compensation. This provision

instead applies to workers like adjunct faculty members at institutions of

higher education, who generally receive a set stipend for an entire

semester, regardless of whether they have to cancel a class. See Letter

from Sandra Benson Brantley, Counsel to the General Assembly, to

Delegate Luke Clippinger (Feb. 15, 2018); see also DLLR, Maryland

Healthy Working Families Act: Frequently Asked Questions at 13

(explaining that employees who work on commission may also fall into

this category).

46 [103 Op. Att’y

system nearly every day and might rely on their income from

substitute teaching to earn a living.

In fact, at least three other states—California, Arizona, and

Oregon—seem to guarantee paid sick leave to their daily substitute

teachers. See, e.g., Cal. Labor Code, Art. 1.5 § 246 (covering all

but a few employees who work “30 or more days a year”); Ariz.

Rev. Stat. Ann. §§ 23-362, 372 (excluding only persons who are

“employed by a parent or a sibling” or “employed performing

babysitting services in the employer’s home on a casual basis”);

Industrial Comm’n of Ariz., Frequently Asked Questions About

Minimum Wage and Earned Paid Sick Time, at 16 (July 3, 2017)

(outlining the circumstances under which “on-call employees” in

Arizona may use paid sick leave); Oregon Sch. Bd. Ass’n,

Oregon’s Sick Time Frequently Asked Questions, at 10 (Sept. 26,

2016). 25 Under those statutes, school systems in California and

Oregon have apparently already developed procedures for

substitute teachers to accrue and use sick leave. 26 Given that other

25

In Oregon, some school systems have said that daily substitute

teachers may earn leave but are entitled to use accrued leave only when

they were already scheduled in advance for that day. Eugene Sch. Dist.,

Substitute Sick Time, https://www.4j.lane.edu/hr/substitute-sick-time/;

North Clackamas Sch. Dist., Oregon Sick Time Rule Guidance in North

Clackamas Sch. Dist., https://www.nclack.k12.or.us/sites/default/files/

fileattachments/business_services/page/7791/ncsdoregon_sick_leave

_rule_guidance.pdf. It is not clear, however, whether those policies are

based on an interpretation of Oregon’s sick leave law or on some other

ground. Somewhat similarly, the State of Washington has apparently

interpreted its paid sick leave law to allow daily substitutes to accrue sick

leave but to prevent them from using sick leave unless they are

“required” to work on a particular day. Porter Foster Rorick LLP,

Washington Public School Substitutes and Coaches under Initiative

1433 (Jan. 19, 2018), https://pfrwa.com/HT/180118paid.sick.leave.pdf.

Because substitute teachers are almost never “required” to work,

however, Washington’s interpretation affords little benefit to most daily

substitutes, unless they are eventually hired as a regular teacher and may

carry over accrued leave that they earned as a substitute.

26

See, e.g., Riverside Unified Sch. Dist., Substitute Teacher

Handbook, at 18 (April 2017), http://www.riversideunified.org/

UserFiles/Servers/Server_580721/File/Departments/Personnel/Substitut

e%20Handbook%2016-17%20rev.%204-13-17.pdf; see also Twin

Rivers Unified School District, Substitute Sick Leave, at 1 (May 2018),

http://www.twinriversusd.org/documents/Operations/Human%20Resou

rces/Substitute%20Services/Substitute%20Information/Substitute%20S

ick%20Leave%20Information.pdf; West Contra Costa Unified School

Gen. 18] 47

states are providing paid sick leave to daily substitutes, it is difficult

to see how providing the same type of leave to Maryland substitutes

would be an absurd result.

We recognize that some provisions of the Act may be difficult

to apply in practice to on-call employees like daily substitute

teachers. See Stellman Letter at 6. For instance, the Act gives

employers discretion to provide employees with the “full amount”

of their sick and safe leave at the beginning of the year that the

employees “would earn over the course of the year.” LE § 3-

1304(d). That provision cannot practically be applied to daily

substitutes when the school systems do not know how many hours

the substitute will earn during the year. Similarly, the Act allows

an employer to require that an employee provide up to 7 days

“reasonable advance notice” of the employee’s intent to take sick

leave when the need for leave is foreseeable. LE § 3-1305(b)(1).

If, however, a daily substitute teacher provides advance notice of

an intent to take leave when that substitute is not already scheduled

for an assignment and the school system does not offer the

substitute an assignment, it is not clear whether the substitute could

use his or her leave under those circumstances.

However, the mere existence of questions about how to apply

some provisions of the Act does not mean that the Act as a whole

cannot be applied to daily substitutes. The General Assembly can

seldom foresee how a statute will apply in every case or how all the

pieces of a statutory scheme will fit together in every situation. In

part for that reason, the Legislature gave the Commissioner

authority to promulgate regulations to clarify how the Act will be

applied where the statute leaves some ambiguity. Although it is

not our role to make policy on behalf of DLLR, and it is beyond

the scope of this opinion to advise on the legality of any

hypothetical interpretation by DLLR, we think the Commissioner

has at least some discretion to clarify how the statute will apply to

daily substitute teachers in particular circumstances. The

Commissioner might even have latitude to interpret the statute so

as to impose some limits on when daily substitutes can use their

accrued sick and safe leave, if necessary to ensure that the statutory

District, Substitute Sick Leave, https://www.wccusd.net/Page/6247;

Eugene Sch. Dist., Substitute Sick Time, https://www.4j.lane.edu/hr/

substitute-sick-time/; North Clackamas Sch. Dist., Oregon Sick Time

Rule Guidance in North Clackamas School District, https://

www.nclack.k12.or.us/sites/default/files/fileattachments/business_servi

ces/page/7791/ncsd_oregon_sick_leave_rule_guidance.pdf.

48 [103 Op. Att’y

scheme functions in a workable fashion, consistent with the

legislative purpose. 27

III

Conclusion

In sum, we conclude that the Act does not categorically

exclude daily substitute teachers from its scope. Although many

daily substitutes will not be entitled to earn sick leave because they

regularly work less than 12 hours a week, there will be at least some

substitutes entitled to leave under the Act. That said, the

Commissioner may have authority to interpret the Act to impose

some limits on when daily substitutes may use leave they have

accrued.

Brian E. Frosh

Attorney General of Maryland

Patrick B. Hughes

Chief Counsel,

Opinions and Advice

*Elizabeth M. Kameen, Assistant Attorney General, contributed

significantly to the preparation of this Opinion.

27

For example, although we do not decide the legality of any

particular interpretation here, the Commissioner might be able to

interpret the statute to impose certain limits on the ability of a substitute

teacher to use sick leave when the substitute is not already scheduled to

work on a particular day. See footnote 25, supra (noting that at least

some Oregon school districts have adopted similar policies). We also

note that, although the school systems have expressed concerns about

facing penalties under the Act, see Stellman Letter at 3 n.3, the Act gives

the Commissioner some discretion in enforcing the statute.