HB 581
Department of Legislative Services
Maryland General Assembly
2021 Session
FISCAL AND POLICY NOTE
Third Reader - Revised
House Bill 581 (Delegate D.E. Davis)
Economic Matters and Appropriations Finance
Labor and Employment - Employment Standards During an Emergency
(Maryland Essential Workers' Protection Act)
This emergency bill establishes benefits and protections for essential workers during a
catastrophic health emergency, and related responsibilities for each employer of an
essential worker. The bill requires (1) the Maryland Department of Labor (MDL) to enforce
the bill and adopt a specified emergency temporary standard to address the COVID-19
pandemic and (2) the Maryland Department of Health (MDH) to adopt a template health
emergency preparedness plan. The bill applies prospectively and may not be applied or
interpreted to require an essential employer to pay an essential worker for leave taken
before the effective date of the bill. The bill’s requirements related to an emergency
temporary standard and the adoption of a template health emergency preparedness
plan terminate six months from the date the COVID-19 state of emergency ends.
Fiscal Summary
State Effect: State expenditures (all funds) increase, potentially significantly, in FY 2021
and 2022 to provide safety equipment and other benefits to essential workers; costs for
public health emergency leave, if provided, are at least partially offset by federal funding.
General fund expenditures increase by at least $407,400 in FY 2021 for MDL and MDH
to implement and/or enforce the bill; annualized costs continue for at least one year for
MDL, and certain ongoing costs continue beyond that timeframe as discussed below. Any
potential impact for compliance and enforcement beyond FY 2022 is not reflected below.
(in dollars) FY 2021 FY 2022 FY 2023 FY 2024 FY 2025
GF Revenue - - $0 $0 $0
GF Expenditure $407,400 $399,000 $30,000 $30,000 $30,000
GF/SF/FF Exp. - - $0 $0 $0
NonBud Exp. - - $0 $0 $0
Higher Ed Exp. - - $0 $0 $0
Net Effect (-) (-) ($30,000) ($30,000) ($30,000)
Note:() = decrease; GF = general funds; FF = federal funds; SF = special funds; - = indeterminate increase; (-) = indeterminate decrease
Local Effect: Local government expenditures increase, potentially significantly, to
provide safety equipment and other benefits required by the bill to essential workers.
Revenues are not anticipated to be materially affected. This bill imposes a mandate on a
unit of local government.
Small Business Effect: Meaningful.
Analysis
Bill Summary: Broadly, the bill establishes the following rights, benefits, responsibilities,
and obligations related to essential workers, essential employers, and catastrophic health
emergencies:
 An essential employer must provide safe working conditions during an emergency
and, subject to availability, necessary amounts of safety equipment at no cost to
essential workers, as specified.
 An essential employee has a right to refuse to perform an assigned task, as specified.
 An essential employer must take proactive steps to minimize the risk of transmission
of the communicable disease that is the subject of the emergency, including paying
for an essential employee to be tested for the disease under certain circumstances.
 An essential employer must provide an essential worker with public health
emergency leave when federal or State funding is made available for that purpose,
calculated based on an employee’s average working hours, as specified.
 An essential employer may not knowingly misclassify an essential worker as an
independent contractor or other classification to avoid any other benefits due to an
essential worker during an emergency.
 MDL and specified offices within MDL (1) are generally responsible for enforcing
the bill and must report to the General Assembly by January 1, 2022, concerning
COVID-19 enforcement activities and (2) must adopt an emergency temporary
standard, as specified.
 MDH must, in consultation with MDL and local health departments, develop a
template health emergency preparedness plan for responding to catastrophic health
emergencies.
A more detailed description of these rights, benefits, responsibilities, and obligations can
be found below.
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Definitions and Applicability
“Emergency” means a catastrophic health emergency, as defined in current law, that is the
subject of an executive proclamation and is related to a communicable disease. “Essential
worker” means an individual who performs a duty or work responsibility during an
emergency that cannot be performed remotely or is required to be completed at the worksite
and provides services that the essential employer determines to be essential or critical to
its operations. “Essential employer” means a person that employs an essential worker and
includes a unit of State or local government. The bill applies to essential employers in
industries and sectors identified by the Governor or a federal or State agency as critical to
remain in operation during the emergency.
Working Conditions
During an emergency, each essential employer must (1) provide working conditions that
comply with applicable safety standards adopted by a federal or State agency; (2) subject
to availability, provide necessary amounts of safety equipment recommended for usage
during the emergency to essential workers at no cost; (3) adopt, maintain, and post written
protocols to ensure an essential worker’s access to information regarding the applicable
safety standards in effect during the emergency; and (4) provide or implement any other
measures or requirements set by the Governor or a federal or State agency to ensure the
general health and safety of essential workers.
An essential worker has a right to refuse to perform an assigned task, as provided under
the bill and corollary regulations adopted by MDL, and is protected from discharge or other
discrimination by the employer if a task is refused. As discussed further below, current
regulations specify the conditions under which an employee may refuse to perform
assigned tasks.
Procedures and Testing to Mitigate Communicable Disease Transmission
During an emergency, if any worker contracts the communicable disease that is the subject
of the emergency at a worksite, the essential employer must take proactive steps to
minimize the risk of transmission, including informing essential workers that they may
have been exposed. Additionally, if an essential worker’s health insurance coverage or
other benefits do not cover the cost of testing for the communicable disease, the essential
employer must pay for testing, unless the essential worker is able to obtain testing free of
charge.
Any such positive test result must be reported to MDH, as specified, and MDH must
publish the data in a format that is readily accessible to the general public. The
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Commissioner of Labor and Industry must adopt regulations as necessary to meet these
requirements.
Public Health Emergency Leave
If the federal or State government provides funding that can be used for public health
emergency leave, then each essential employer must provide an essential worker with
public health emergency leave on the date the funding is made available. This leave is in
addition to any other leave, including leave required by the Maryland Healthy Working
Families Act (MHWFA)). If specified in a federal program, order, law, or regulation, the
amount of leave provided must equal that requirement. Otherwise, a full-time essential
worker who regularly works 40 hours or more per week must be provided with 112 hours
of leave, and the bill specifies the calculations (generally based on average weekly working
hours) for determining leave due to other essential workers.
Specifically with regard to the declaration of a state of emergency by the Governor related
to the COVID-19 pandemic, each essential employer must provide public health
emergency leave to each essential worker on the date that federal or State funding for the
leave is made available to the employer.
Each essential employer must allow an essential worker to use public health emergency
leave for specified purposes, including (1) to isolate without an order to do so because the
essential worker has been diagnosed with the communicable disease that is the subject of
the emergency or is experiencing associated symptoms; (2) to care for a family member
who is isolating for the same reason; or (3) for related and specified public health and safety
reasons.
This public health emergency leave requirement may not be construed to (1) require an
essential employer to compensate an essential worker for unused leave when the essential
worker leaves employment; (2) preempt, limit, or otherwise affect any other law that
provides for similar leave benefits that are more generous than those required by the bill;
(3) preempt, limit, or otherwise affect any workers’ compensation benefits; (4) prohibit an
essential employer from adopting and enforcing a policy that prohibits improper use of the
leave; or (5) prohibit an essential employer from providing more leave than is required.
An essential employer may require an essential worker who uses the leave to document the
need to do so, and if an essential worker fails to do so, the essential employer may refuse
to pay for the leave. The Commissioner of Labor and Industry must adopt regulations
regarding the forms of documentation that an essential employer may require.
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Maryland Department of Labor – Enforcement and Reporting
The Commissioner of Labor and Industry must generally enforce the bill’s requirements.
The bill authorizes essential workers to seek enforcement of rights and file written
complaints with the Commissioner as specified to ensure compliance with the bill. The bill
establishes procedures that the Commissioner must follow to respond to complaints,
depending on the right or benefit established by the bill. Among other things, depending
on the right or benefit, the Commissioner is authorized to conduct investigations,
implement mediation, order an essential employer to pay for public health emergency
leave, and assess a civil penalty of up to $1,000 for each essential worker for whom the
employer is not in compliance with the bill. The Commissioner must adopt any required
regulations as soon as practicable after the bill takes effect.
By January 1, 2022, Maryland Occupational Safety and Health (MOSH) must report to the
General Assembly on enforcement actions related to COVID-19, including (1) the number
of formal and informal complaints received; (2) the number of site inspections conducted;
and (3) information related to any citations issued to employers.
Maryland Department of Labor – Emergency Standards
Within two weeks after the effective date of the bill, the Secretary of Labor must either
(1) adopt the Emergency Temporary Standard related to COVID-19 issued by the federal
Occupational Safety and Health Administration (OSHA) or (2) if OSHA has not issued a
standard, adopt a State Emergency Temporary Standard that meets specified requirements.
In either case, the standard adopted must expire at the earlier of the conclusion of the
COVID-19 catastrophic health emergency or the adoption of a permanent aerosol
transmissible disease standard by OSHA and the U.S. Secretary of Labor. If a federal
Emergency Temporary Standard is adopted, it must remain in effect regardless of whether
it becomes the subject of federal litigation.
Maryland Department of Health – Emergency Preparedness Plan Template
By August 1, 2021, MDH must, in consultation with MDL and local health departments,
develop a template health emergency preparedness plan for responding to catastrophic
health emergencies. The plan must be consistent with any applicable federal and State
standards, incorporate input from employers, include a coordinated process for handling
complaints related to unsafe working conditions due to a catastrophic health emergency,
and include methods for raising public awareness about the process for filing a complaint
about unsafe working conditions due to a catastrophic health emergency.
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In addition, by October 1, 2021, MDH must, in consultation with MDL and local health
departments, report to the General Assembly on recommendations for potential legislation
to enhance the agencies’ enforcement authority during a catastrophic health emergency.
Current Law: Various State and federal laws establish requirements for employers and
rights and benefits for employees in the State and nation. The following sections include a
short summary of some of the requirements and benefits as they relate to the bill, including
federal laws enacted specifically to address labor issues during the COVID-19 pandemic.
For additional information on the COVID-19 pandemic and federal legislation passed to
address the pandemic, please see Appendix – COVID-19.
Workplace Safety Measures
At the federal level, the U.S. Centers for Disease Control and Prevention and OSHA within
the U.S. Department of Labor have issued guidance on preparing workplaces for
COVID-19. The Division of Labor and Industry within MDL administers the MOSH
program.
The requirements of the MOSH program are codified by the MOSH Act. In general, these
requirements parallel safety standards established by OSHA. MOSH is assisting employers
and employees during the pandemic by developing targeted COVID-19 resource
documents, answering technical questions, providing proper channels to file complaints
regarding the Governor’s executive orders related to COVID-19, utilizing inspections and
investigating complaints to ensure compliance with regulations, and evaluating reports of
worker deaths and initiating fatality inspections when warranted.
Sick and Safe Leave
MHWFA requires an employer with 15 or more employees to have a sick and safe leave
policy under which an employee earns at least 1 hour of paid sick and safe leave, at the
same rate as the employee normally earns, for every 30 hours an employee works. An
employer with 14 or fewer employees, based on the average monthly number of employees
during the preceding year, must at least have a sick and safe leave policy that provides an
employee with at least 1 hour of unpaid sick and safe leave for every 30 hours an employee
works.
An employee is eligible to use sick and safe leave under specified circumstances, including
to care for or treat the employee’s mental or physical illness, injury, or condition; to obtain
preventive medical care for the employee or employee’s family member; and to care for a
family member with a mental or physical illness, injury, or condition. Several of the
authorized reasons for taking leave align with potential usage needs during the pandemic.
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An employer may not require an employee to exhaust leave provided under MHWFA
before taking leave granted under the Families First Coronavirus Response Act (FFCRA).
FFCRA helps combat the workplace effects of the pandemic by reimbursing, in the form
of tax credits, private employers with fewer than 500 employees for the cost of providing
employees with paid leave taken for specified reasons related to COVID-19. FFCRA also
requires certain employers to provide their employees with paid sick leave under the
Emergency Paid Sick Leave Act (EPSLA) and expanded family and medical leave under
the Emergency Family and Medical Leave Expansion Act (EFMLEA) for specified reasons
related to COVID-19.
Under EPSLA, employees of covered employers are eligible for two weeks (up to 80 hours)
of paid sick leave for specified reasons related to COVID-19. EFMLEA requires specified
employers to provide up to 10 weeks of paid and 2 weeks unpaid expanded family and
medical leave. The leave is paid at a rate of two-thirds of the employee’s regular rate of
pay and is available if an employee has been employed for at least 30 calendar days and is
unable to work due to a bona fide need for leave to care for a child whose school or child
care provider is closed or unavailable for reasons related to COVID-19. EFMLEA only
provides leave for reasons related to COVID-19.
Catastrophic Health Emergencies
“Catastrophic health emergency” means a situation in which extensive loss of life or
serious disability is threatened imminently because of exposure to a deadly agent (such as
anthrax, ebola, plague, or other bacterial, fungal, rickettsial, or viral agents). If the
Governor determines that a catastrophic health emergency exists, the Governor may issue
a proclamation that indicates the nature of the emergency, the areas threatened, and the
conditions that led to the emergency or made possible termination of the emergency. A
proclamation expires after 30 days, but can be renewed for successive 30-day periods.
During such an emergency, the Governor is granted broad executive power to address the
emergency to prevent exposure and save lives.
Right to Refuse
Generally, an employer may not discharge or otherwise discriminate against an employee
because the employee (1) files a complaint under or related to labor laws, benefits, and
obligations; (2) brings a rel