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

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
Gen. 18] 19
school systems are seeking more definitive guidance, however, you
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,
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
day-to-day basis and are free to decline an assignment for any
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/employmentopportunities/
Documents/CCPS%20Substitute%20Handbook%2017-18.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
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
under the Act other than to enforce an order issued by the
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:
Gen. 18] 25
This bill would provide leave benefits to all
budgeted staff working at least .5 FTE [i.e.,
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
8
Senate Bill 230 was the cross-filed version of House Bill 1.
26 [103 Op. Att’y
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
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
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
amendments to the bill made no reference to daily substitute
teachers or to the education industry.
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.
28 [103 Op. Att’y
Senate Proceedings No. 56, 2017 Leg., Reg. Sess. (March 31,
2017).
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.
Gen. 18] 29
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
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
30 [103 Op. Att’y
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
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,
Gen. 18] 31
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
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
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
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
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,
11
Webster’s Encyclopedic Unabridged Dictionary 1624 (1996).
12
The American Heritage Dictionary 1041 (2d ed. 1985).
Gen. 18] 33
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
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
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
Consequences, at 1, 2 (April 9, 2015), https://www.epi.org/files/
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
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
factual situations does not mean that it is ambiguous” as applied to
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
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
evidence of legislative intent, “especially where there were
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
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
legislative history, considered as a whole, does not appear to
contradict our conclusion as to this exception.
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
Gen. 18] 41
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
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
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
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
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
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
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
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
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
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).
Gen. 18] 45
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
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
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
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
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
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
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
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
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
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.