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Maryland Flexible Leave Act

Published by on October 5, 2009

In October 2008, a piece of legislation went into effect that all Maryland employees are sure to be aware of.  Maryland’s Flexible Leave Act went into effect on October 1, 2008, and requires that employees be permitted to use leave for the illness of immediate family members.  Under the Act, which applies to employers of […]

In October 2008, a piece of legislation went into effect that all Maryland employees are sure to be aware of.  Maryland’s Flexible Leave Act went into effect on October 1, 2008, and requires that employees be permitted to use leave for the illness of immediate family members.  Under the Act, which applies to employers of 15 or more employees, employees must be given the option to use any type of accrued, paid leave available to them (sick, vacation, comp-time, PTO, etc.) when an immediate family member becomes ill.  More after the break.

The Act obliges employers to allow employees to use accrued leave time for care of a family member, at the employee’s discretion.  It requires only those employees who have already accrued paid leave to use it to care for a family member as opposed to requiring a request for unpaid leave of up to 12 weeks under the FMLA.  Any kind of paid leave that has been accrued before and after the law’s effective date including sick time, vacation or personal days, floating holidays, or comp time can be used under the Act.

Any employee who uses the provisions of the Act but is covered by a collective bargaining agreement must also comply with the terms of that agreement.  The employee must further comply with any leave policies the employer already has in place.  Notably, under the Act employer’s respective notice requirements must be followed.  In addition, if the employer’s paid leave policy is more generous than the Act’s, the more generous option must be implemented.  Conversely, if the employer’s policy is stricter than the Act, the Act’s minimum requirements must be followed.  For instance, if an employer allows leave only for personal illness, the Act’s provisions must be applied by the employer.  Finally, the Act contains a non-retaliation provision.  Employers may not take adverse employment action against an employee who takes paid leave under the Act, or who complains about violations of the Act or participates in an investigation or legal act. 

The Act creates a number of new obligations for employers in Maryland for which there are just as many unanswered questions.  First, the Act does not specify the type of illness that is sufficient to trigger coverage.  The word “serious” is conspicuously missing from the Act’s illness language.  Unlike the FMLA or ADA, there is no specific definition of what constitutes an “illness” under the Act.  Legislators supporting the Act aspired for the requirement of a qualifying illness to be very light.  With no definition (or guidance) provided, currently under the Act if an employee has available sick leave, he would presumably be able to take time to care for himself or a member of his immediate family (including children and parents) who is suffering from a minor illness, without providing notice to his employer.

The specific types of employee leave that may be used under the Act are likewise not provided.  The statute does not define or limit “leave with pay” other than to reference sick leave, vacation time, and compensatory time.  Other forms of paid leave, such as disability leave, therefore may or may not also be considered “leave with pay” under the Act.  Under such a scenario, a potentially hefty amount of leave could be available for employees under the Act.  

Further, the definition of who qualifies as an employee’s “immediate family” is nowhere to be found in the Act.  The Act states only that it applies to illnesses of “a child, spouse, and parent.”  The Act does not include a clear or specific definition of who qualifies as a “child” or a “parent.”  Similar issues have come up in the implementation of the FMLA, where the term “child” includes step-children, foster children, and others for whom the employee acts as guardian.  Questions regarding the application of the Act in relation to such situations as same-sex partners and adult children are not acknowledged by the Act’s language and are sure to be issues.

In light of the Act, existing leave policies should be reviewed by employers.   Employers should also confer with their employment counsel to ensure that their policies or agreements comply with the Act.  Employers should also be aware of any additional opinion letters issued by the Maryland Attorney General and make additional modifications to their leave policies.  Additionally, the Maryland Chamber of Commerce has recently garnered significant support for amendments to the Act containing definitions.  Any such amendment would be welcomed by employers.

While the breadth of the Act is currently mostly unexplored, employers can still take some preventative actions to avoid unnecessary liability and headaches under the Act.  For instance, employers may want to consider implementing procedures for employees who elect to take leave.  A requirement that employees who take paid leave for an illness provide some documentation about the type of illness that prompted the leave request would be reasonable.  As stated above, however, the Act does not define the term “illness.”  Thus, a specific request for a doctor’s note may not be deemed reasonable under the Act.  Nondiscriminatory verification procedures, similar to those used for FMLA leave, could be used to confirm the reasons for the requested leave.  In addition, employers are able to put procedures in place to require a certain period of notice from employees who intend to take paid leave.  Thus, with notice requirements implemented, employers could avoid many potential abuses of the Act.  Moreover, the possibility of unexpected employee requests or flexible leave to care for himself, a child, or a parent could be diminished with the implementation of simple procedures such as the above.

Contributed by Michael Wilson Stoker

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