Quick Hit:  Maryland has joined Virginia and New York in enacting a COVID-19 workplace safety law (HB 581), the Maryland Essential Workers’ Protection Act (the “EWPA” or the “Act”).  The law imposes workplace requirements on certain employers during a health emergency – employers that operate in certain essential sectors and have employees who must work onsite in essential functions.  It will apply during the current COVID-19 pandemic, but only while 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 providing leave.

More Detail:  The Act outlines actions certain employers must take while 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.

The EWPA applies only to “essential employers” in industries and sectors “identified by the governor or a federal or state agency as critical to remain in operation 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, dated March 23, 2020, and the U.S. Department of Homeland Security Cybersecurity & Infrastructure Security Agency’s Guidance on Essential Critical Infrastructure Workers, dated December 16, 2020, which include healthcare, pharmaceutical, chemical manufacturers, emergency services, financial services, education, food and agriculture, energy, water and wastewater systems, transportation and logistics, and communications and information technology, among other sectors.

Under the Act, a covered “essential employer” is one operating in a covered industry that employs an “essential worker”, which in turn is defined as: (1) an employee who “performs a duty or work responsibility during an emergency that cannot be performed remotely or is required to be completed at the work site”; and (2) provides services the employer determines “to be essential or critical to its operations.”

Among other things, the Act requires covered employers during a covered public health emergency to:

  • Provide working conditions that comply with the safety standards adopted by a federal or applicable state agency;
  • Provide “necessary amounts” of safety equipment recommended during the emergency at no cost to the workers, subject to availability;
  • Adopt, maintain, and post written protocols regarding 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 public health emergency paid leave to isolate or to care for themselves or a family member, provided the federal or state government has provided the employer with funding for such leave;
  • Take proactive steps to minimize the risk of workplace transmission of the infectious disease that is the subject of the emergency, including informing workers if they may have been exposed in the workplace, and paying for testing if such testing is not already covered by the worker’s insurance or able to be obtained free of charge; and
  • Implement any other requirements or measures established by the Governor or a federal or applicable state agency to ensure the general health and safety of essential workers.

The Act additionally prohibits employers from knowingly misclassifying essential workers as independent contractors or another classification to avoid providing compensation or benefits under the Act, and prohibits retaliation against employees for exercising rights under the Act.

Workers may submit complaints of alleged employer violations of the EWPA to the Commissioner of Labor and Industry.  If the Commissioner determines the employer violated a provision of the Act relating to public health emergency leave, the employer could face monetary penalties in the form of the full value of any unpaid public health emergency leave and any actual economic damages, an amount up to three times the value of the essential worker’s hourly wage for each violation, and a civil penalty up to $1,000 for each essential worker for whom the employer was not in compliance.  If the Commissioner determines any of the anti-retaliation or provisions of the Act were violated, the Commissioner can file a complaint to reinstate the employee with back pay or “other appropriate relief.”

The EWPA further directs Maryland’s Secretary of Labor, within 2 weeks after the Act goes into effect, to either adopt the federal OSHA Emergency Temporary Standard related to COVID-19 if it has been issued or, if not, to adopt a state-level Emergency Temporary Standard related to COVID-19 that meets or exceeds the guidance published by OSHA on January 29, 2021 and complies with the Act.  As the federal OSHA Emergency Temporary Standard was released on June 10, 2021 and will go into effect once it is published in the Federal Register, it appears likely Maryland’s Secretary of Labor will adopt this federal standard rather than adopt a state-level alternative.

Governor Hogan announced on May 28 that he will allow the bill to become law without his signature.

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Proskauer’s cross-disciplinary, cross-jurisdictional Coronavirus Response Team is focused on supporting and addressing client concerns. Visit our Coronavirus Resource Center for guidance on risk management measures, practical steps businesses can take and resources to help manage ongoing operations.

Photo of Guy Brenner Guy Brenner

Guy Brenner is a partner in the Labor & Employment Law Department and leads the Firm’s Washington, D.C. Labor & Employment practice. He is head of the Government Contractor Compliance Group and is co-head of the Non-Compete & Trade Secrets Group. He has…

Guy Brenner is a partner in the Labor & Employment Law Department and leads the Firm’s Washington, D.C. Labor & Employment practice. He is head of the Government Contractor Compliance Group and is co-head of the Non-Compete & Trade Secrets Group. He has extensive experience representing employers in both single-plaintiff and class action matters, as well as in arbitration proceedings. He also regularly assists federal government contractors with the many special employment-related compliance challenges they face.

Guy represents employers in all aspects of employment and labor litigation and counseling, with an emphasis on non-compete and trade secrets issues, medical and disability leave matters, employee/independent contractor classification issues, and the investigation and litigation of whistleblower claims. He assists employers in negotiating and drafting executive agreements and employee mobility agreements, including non-competition, non-solicit and non-disclosure agreements, and also conducts and supervises internal investigations. He also regularly advises clients on pay equity matters, including privileged pay equity analyses.

Guy advises federal government contractors and subcontractors all aspects of Office of Federal Contract Compliance Programs (OFCCP) regulations and requirements, including preparing affirmative action plans, responding to desk audits, and managing on-site audits.

Photo of Lexie Reynolds Lexie Reynolds

Lexie Reynolds is an associate in the Labor & Employment Law Department, and a member of the Employment Law Counseling & Training, Employment Litigation & Arbitration, and the Discriminatory, Harassment, and Title VII Practice Groups. Lexie’s practice covers a wide range of matters…

Lexie Reynolds is an associate in the Labor & Employment Law Department, and a member of the Employment Law Counseling & Training, Employment Litigation & Arbitration, and the Discriminatory, Harassment, and Title VII Practice Groups. Lexie’s practice covers a wide range of matters with a focus on internal corporate and government investigations. She has represented private and public companies, boards of directors and their committees, and individuals across many different industries including entertainment, financial services, and technology.

Lexie has advised and assisted clients in a variety of internal investigations as well as government enforcement actions involving the DOL, DOJ, and SEC. She has litigated matters at the administrative, state, and federal level, including a federal court trial. She has experience in matters involving Title VII discrimination, fraud, whistleblower activity, and retaliation.

Lexie is also dedicated to pro bono work and has represented individuals at the state administrative, federal court, and appellate levels including matters involving discrimination, veteran benefits, and immigration. Additionally, she has volunteered her time each year to mentor middle school students in a mock trial program aimed at developing public speaking, self-confidence, and awareness of legal rights.

While in law school, Lexie litigated criminal matters, representing juvenile and adult individuals in state court. Additionally, she interned at the Boston Juvenile Court and the Massachusetts Office of the Child Advocate.

Photo of Shanice Z. Smith-Banks Shanice Z. Smith-Banks

Shanice Smith-Banks earned her J.D. from Loyola University New Orleans College of Law, where she was a Managing Editor of the Loyola University Journal of Public Interest Law and a member of the Trial Advocacy program. As a 3L, Shanice was awarded the…

Shanice Smith-Banks earned her J.D. from Loyola University New Orleans College of Law, where she was a Managing Editor of the Loyola University Journal of Public Interest Law and a member of the Trial Advocacy program. As a 3L, Shanice was awarded the CourtCall Award for her advocacy skills.

Immediately upon graduation from Loyola, Shanice argued a case on behalf of the Loyola Criminal Defense Law Clinic in front of the Louisiana Supreme Court.

Immediately upon graduation from Loyola, Shanice argued a case on behalf of the Loyola Criminal Defense Law Clinic in front of the Louisiana Supreme Court.