Community Associations Update - October 2016
Montgomery County Employers Must Provide Paid Sick and Safe Leave Effective October 1, 2016
By: Tiffany M. Releford, Esq.
Effective October 1, 2016, all employers in Montgomery County, Maryland with one or more employees are required to provide employees with paid sick and safe leave. All employees must earn one hour of paid leave for every 30 hours an employee works in Montgomery County, up to 56 hours a year. Employers with 5 or more employees must provide paid sick and safe leave; whereas, employers with less than 5 employees must provide 32 hours of paid sick and safe leave, as well as 24 hours of unpaid sick and safe leave per year.
The new law covers all employees except: individuals who do not have a regular work schedule with the employer; individuals who contact the employer for work assignments and are scheduled within 48 hours; individuals who have no obligation to work for the employer unless they initiate contact; individuals not employed by a temporary placement agency; individuals who regularly work 8 hours or less each week; or an individual who is an independent contractor.
An employer has the choice to provide sick and safe leave as it accrues throughout the year or award it all at the beginning of the year. If an employer uses an accrual method for sick and safe leave, an employer must allow the employee to carryover up to 56 hours of the leave to the next year.
Although sick and safe leave starts to accrue at the time of hire, employers may prohibit use of sick leave until an employee has completed the employer’s 90 day probationary or introductory period. Likewise, an employer is not required to pay out accrued but unused sick and safe leave at the time of termination; however, an employer may be required to reinstate accrued but unused sick and safe leave if an employee is reinstated within 9 months, unless the employee is determined not eligible for unemployment benefits because the employee voluntarily left without good cause.
It is important to note that the sick and safe leave can be used for reasons other than the employee’s own illness. The uses include:
- To care for the employee’s or a family member’s mental or physical condition
- To care for a family members who presents a risk to the community because of exposure to a communicable disease
- To allow the employee or a family member to obtain preventative medical care
- If the place of business is closed due to a public health emergency
- If the school or childcare center of a family member is closed due to a public health emergency
- To seek any medical attention, legal services or any services provided by victim’s organizations or to temporarily relocate due to domestic violence, sexual assault or stalking
Under the new law, a family member is defined as a biological, adopted, foster, stepchild or grandchild of the employee; a child that the employee has legal or physical custody of or is the primary caregiver; a biological, adoptive, foster or step parent of the employee or the employee’s spouse; legal guardian of the employee who has been the primary caregiver of the employee when he/she was a minor; a spouse; a grandparent or the spouse of a grandparent of the employee; and a biological, adopted or foster sibling or spouse of a sibling of the employee.
If an employer’s policies currently provide employees 56 or more hours of vacation or paid time off, the only change an employer may need to make is to ensure their policies state the uses set forth above for sick and safe leave. Please note an employer is not required to allow an employee to use more than 80 hours of sick and safe leave in a year, and may request documentation if an employee is out for more than 3 consecutive days.
All employers should be mindful that the new law prohibits employers from retaliating against employees who exercise their sick and safe leave rights. In addition, all employers must keep records of sick and safe leave accrued and used by employees for at least 3 years. Lastly, employers must provide notice of this new law to all employees. Sample notices can be found on the County’s website at http://www.montgomerycountymd.gov/humanrights/index.html.
Employers are encouraged to review their current policies to make sure they are in compliance with this new law, as well as consult with legal counsel should they have any questions.
HAM Radio Legislation: Why it Matters to Community Associations
By: Richa Fortuna, Esq.
“Ham radio” refers to amateur radio operations and antennas, which has a surprisingly large following among local hobbyists and enthusiasts. While the federal Telecommunications Act of 1996 ( “Telecommunications Act”) is the ultimate authority on regulating satellite dishes and television antennas, it does not apply to amateur radio (“ham radio”) antennas. The Telecommunications Act prohibits community associations from restricting a property owner’s right to install a satellite dish or television antenna on property exclusively within the property owner’s control. The Act’s protections, do not, however, extend to ham radio operations. The Federal Communication Commission’s (the “Commission” or “FCC”) PRB-1 document, an 11 page Amateur Radio Memorandum Opinion and Order, provides that local governments must reasonably accommodate amateur operations, but these regulations do not extend to private land-use restrictions such as deed covenants, conditions, and restrictions (“restrictive covenants”).
The long standing belief held by condominium or homeowner's associations is that ham radio installations constitute safety hazards, cause interference to other electronic equipment, or are eyesores that detract from the aesthetic and tasteful appearance of the development/community. To avoid these negative consequences, community associations often enforce restrictive covenants or pass rules and regulations to govern the location and height of antennas or, in some cases, prohibit them altogether.
It is worth nothing that the Federal Communications Commission (“FCC”) passed a ruling that provides that local governments must reasonably accommodate amateur radio operations. But in the same ruling, the FCC noted that the ruling does not reach restrictive covenants in private contractual agreements. The FCC further stated that because restrictive covenants are entered into at the time of the sale or lease of the property and purchasers are free to choose whether they wish to reside where such restrictions on ham radio antennas are in effect or settle elsewhere, it was not within the scope of the FCC regulation to govern private agreements. This means that the governance of ham radio antennas by community associations is not subject to federal regulation.
Potential Legislative Changes Regarding Ham Radios
A bill before Congress, however, seeks to change that by extending the protections afforded to owners of satellite dishes to those who own ham radio communication hardware. The bill, the Amateur Radio Parity Act of 2016 (the “Ham Radio Act”), calls on the FCC to require that private parties acting under contract reasonably accommodate amateur radio operations in the same manner that it requires local governments to provide such reasonable accommodations. Whether this bill becomes law is something that associations, and their managers and attorneys, should watch out for.
Specifically, the Ham Radio Act directs the FCC to amend station antenna structure regulations to prohibit a private land use restriction from applying to ham radio operation if (i) the restriction precludes communications in an amateur radio service, (ii) fails to permit a licensee of amateur radio service to install and maintain an effective outdoor antenna on property under its exclusive use or control, or (iii) is not the minimum practicable restriction to accomplish the lawful purposes of a community association seeking to enforce the restriction. The bill does, however, require an amateur radio licensee to obtain a community association's prior approval before installing an outdoor antenna. In addition, the Ham Radio Act would still allow a community association to prohibit installations on common property not under the exclusive control of the licensee, and to establish installation rules for ham radio antennas and support structures.
What does this mean for community associations? If the Ham Radio Act becomes law, radio enthusiasts living in antenna-restricted communities may have the opportunity to install antennas that reasonably accommodate ham radio communication. For example, the Ham Radio Act would prohibit blanket restrictions against ham radio stations/antennas. Community associations would maintain the right to prohibit installations on common or limited common property, but would no longer be able to restrict a property owner from installing/maintaining an outdoor antenna on property that is under his or her exclusive use or control. Furthermore, any rules and regulations governing ham radio operation or installation would have to be limited to the minimum necessary to “accomplish the lawful purposes of a community association seeking to enforce the restriction.” This means community associations would bear the burden of demonstrating that a particular restriction is necessary to accomplish a lawful purpose before the restriction can be enforced. It is likely that this bill would be interpreted and enforced much like the Telecommunications Act. Therefore, community associations would have to carefully craft and execute their rules regarding ham radios.
The bottom line is that if the Ham Radio Act becomes law, community associations will have much less ability to regulate the installation and operation of radio antennas in their communities.
For now, community associations can continue to regulate ham radio installation and appearance in accordance with their governing documents. The Ham Radio Act was passed by the House of Representatives on September 12, 2016 and is currently in the Senate for review. It proposes significant changes to the current regulation of ham radio station antenna structure regulation and, if enacted into law, will likely have a significant impact on many existing covenants and restrictions. This is a bill that we are monitoring, and we recommend that community associations everywhere do the same in order to ensure that your association’s restrictions are modified as necessary, up to date and enforceable.
Community Association Restrictions on Political Signs
By: Greg Chakmakas, Esq.
With the presidential election fast approaching, political signs featuring names of candidates have covered lawns across Virginia. The placement of political signs on private property within community associations raises competing interests. On the one hand, signs are a form of speech that some residents believe should garner the protection of the First Amendment to the U.S. Constitution. On the other hand, signs may detract from the appearance of a community, invite negative community connotations and detrimentally impact property values. Accordingly, many community associations have governing documents that restrict signage. Some of these restrictions prohibit all signs other than “for sale” or “for lease” signs, while other merely limit the size, number, and placement of signs generally.
How should an association balance the interests of allowing certain speech with the ability to restrict signage?
Generally, when owners buy into a community association they contractually agree to abide by the provisions in the community’s governing documents. In doing so, residents often agree to relinquish some general rights. Although cities and other government entities are constrained by the First Amendment in regulating political yard signs, there is no similar restraint imposed on community associations. While cities are state actors subject to the provisions of the U.S. Constitution, community associations are private parties that do not qualify as state actors. Accordingly, a community association that restricts the placement of signs is not impermissibly infringing on the free speech rights of its residents in violation of the United States Constitution.
A caveat to this general First Amendment principle is that state courts are free to interpret the free-expression provisions in their state constitutions more broadly than the federal courts interpret the First Amendment to the U.S. Constitution. For example, in 2012, the New Jersey Supreme Court ruled that an association’s policy banning all signs, including political signs, violated the free speech clause of the New Jersey State Constitution. Notably, the Supreme Court of Virginia has not yet addressed this issue with respect to Virginia’s constitutional free speech provisions.
Although Virginia courts have not placed free speech limits on the ability of community associations to regulate signs, the Virginia legislative branch has attempted to do so. In 2012, a Virginia Delegate proposed HB 1008. This legislation would have invalidated any community association prohibition against an owner exercising his or her constitutional right to free speech on his or her own property. Ultimately, however, that piece of legislation was continued to the 2013 session of the General Assembly and, subsequently, died without getting passed.
This means that until the Virginia courts or the General Assembly rule or legislate to the contrary, associations remain authorized to enforce their covenants, rules and regulations, including restrictions that reasonably limit or prohibit signs on properties in their respective communities. As always, the specific provisions of your own governing documents will control your actions. Before restricting political signs, ensure the documents in place give the association the right to regulate signs to begin with. If there is no prohibition on signs in the covenants, community associations may be able to make rules regulating rather than prohibiting political signs, but communities without express authority to restrict signage should proceed with caution.
Also, although community associations may have the ability to restrict the presence of political signs, a global restriction may not be in the practical best interests of the community. The more prudent course is to impose reasonable restrictions on the number of signs (1 or 2) , the location of the signs (back far enough to avoid impacting traffic), the size of the signs and the duration of the signs (e.g., three weeks prior to election to put up/two weeks after the election) be enacted.
We reach this conclusion for a couple of reasons. First, most people’s knee jerk reaction to outright prohibiting political signs is that it violates a person’s right to freedom of speech—and perhaps the proximity to Washington, DC only heightens one’s belief in his/her freedom of speech. While this is not technically correct, it is a common perception. Second, in the event political signs are outright banned, there is a strong potential for inflaming owners to file and pursue suit against the Association, which may result in potentially-explosive legal fees the Association would incur in defending such a suit. As such, we advise that instead of outright banning political signs, that the community associations adopt reasonable rules regarding the size, placement, and timing of such political signs.
The state of the law concerning sign restrictions continues to evolve and each association must pay close attention to its own governing documents, so associations should contact legal counsel to discuss potential issues and for advice on navigating the best course forward for your community.