Quick hit: Maryland has joined Virginia and new York by enacting a law on occupational safety COVID-19 (HB 581), the Maryland Essential Workers’ Protection Act (the “EWPA” or the “Act”). The law places workplace requirements on some employers during a health emergency – employers who operate in certain essential industries and have employees who must work on-site in essential functions. It will apply during the current COVID-19 pandemic, but only as long as there remains a declared state of emergency in Maryland. The new requirements focus on providing safe working conditions, reducing the risk of transmission in the workplace and granting leave.
More details: The law describes the actions that some employers must take when a state of emergency is declared due to a “catastrophic health emergency” related to a communicable disease. Maryland has been under such a state of emergency due to the coronavirus pandemic since March 2020.
EWPA applies only to “essential employers” in industries and sectors “identified by the governor or a federal or state agency as essential to remain in business during” such an emergency. Currently, this would apply to industries identified by order of the Governor of the State of Maryland, Number 20-03-23-01, as of March 23, 2020, and the Department of Homeland Security’s Cyber and Infrastructure Security Agency Critical Infrastructure Workers Guidelines, as of December 16, 2020, which includes healthcare, pharmaceuticals, chemical manufacturers, emergency services, financial services, education, food and agriculture, energy , water supply and sanitation systems, transport and logistics, and communications and information technology, among other sectors.
Under the Act, a covered “essential employer” is one who operates in a covered industry that employs an “essential worker”, who in turn is defined as: (1) an employee who “performs a professional task or responsibility during an emergency situation which cannot be carried out remotely or must be completed on the job site ”; and (2) provides services which the employer considers “essential or essential to its activities”.
Among other things, the Act requires covered employers during a covered public health emergency to:
- Provide working conditions that comply with safety standards adopted by an applicable federal or state agency;
- Provide the “necessary quantities” of recommended safety equipment during the emergency at no cost to workers, subject to availability;
- Adopt, maintain and post written protocols concerning the applicable safety standards in effect during the emergency;
- Report all positive test results to the Maryland Department of Health;
- Provide essential employees with certain paid time off in public health emergencies to isolate themselves or care for themselves or a family member, provided the federal or state government has provided the the employer funding for this leave
- Take proactive measures to minimize the risk of transmission in the workplace of the infectious disease of the emergency, including notifying workers if they may have been exposed in the workplace and paying for tests if these tests are not already covered by the worker’s insurance or obtainable free of charge; and
- Implement any other requirement or measure established by the governor or any applicable federal or state agency to ensure the general health and safety of essential workers.
The law further prohibits employers from knowingly classifying essential workers as independent contractors or other classification to avoid providing compensation or benefits under the law, and prohibits retaliation against employees for exercising their rights under of the law.
Workers can lodge complaints about alleged violations of EWPA by the employer with the Commissioner for Labor and Industry. If the Commissioner determines that the employer has violated a provision of the Act relating to emergency public health leave, the employer could face financial penalties in the form of the full value of any emergency health leave. public unpaid and any actual economic harm, an amount of up to three times the value of the essential worker’s hourly wage for each violation, and a civil fine of up to $ 1,000 for each essential worker for which the employer was not in compliance. If the Commissioner determines that any of the anti-reprisal provisions or the law has been violated, the Commissioner may file a complaint to reinstate the employee with back pay or “other appropriate remedy”.
EWPA further directs the Maryland Secretary of Labor, within 2 weeks of the law coming into force, to either adopt the OSHA Temporary Federal Emergency Standard related to COVID-19 if it has been issued or if not, adopt a state-level emergency. Temporary standard related to COVID-19 that meets or exceeds guidelines published by OSHA on January 29, 2021 and complies with the law. As the Federal OSHA Temporary Emergency Standard was published on June 10, 2021 and will go into effect once it is published in the Federal Register, it seems likely that the Maryland Secretary of Labor will adopt this federal standard rather than adopting a state-level alternative .