MARYLAND FLEXIBLE LEAVE LAW GOES INTO
EFFECT OCTOBER 1, 2008
Maryland’s Flexible Leave Act (“MFLA”)
goes into effect October 1, 2008. The law
entitles employees to use paid leave for an illness of an
immediate family member. Although the basic concept seems
straightforward, complying with the law presents challenges.
The Provisions of the MFLA
The MFLA applies to all employers in Maryland with 15 or
more employees. It does not require an employer to provide
leave with pay; however, if leave with pay is provided by
policy or pursuant to a collective bargaining agreement,
the employee is entitled to use such leave to care for an
immediate family member. Under the law:
- Immediate family member includes a spouse, parent or
child.
- Leave with pay means “time away from work for
which an employee receives compensation.” This includes
vacation, sick leave, and compensatory time.
- Only leave that has been earned by the employee may
be used.
- An employee who has more than one type of leave with
pay available may elect the type and amount of leave with
pay to be used.
- The employee must comply with the employer’s
paid leave policy or collective bargaining agreement in
using such leave.
- An employer may not retaliate or discriminate against
an employee who uses paid leave for family illness or
who files a complaint, testifies against, or assists in
an action brought against the employer for a violation
of the law.
The statute also specifies that it “does not affect
leave granted under the federal Family and Medical Leave
Act of 1993.” The only limit on the amount of leave
that can be used under the law is the amount of paid leave
that the employee has available for use under the employer’s
policy. There is no requirement under the MFLA that employees
be notified of their right to take this form of leave.
Issues under the MFLA
The MFLA permits employees to use paid leave for the illness
of a family member but, unlike the Family and Medical Leave
Act (“FMLA”), does not require that the illness
be “serious.” Thus, any illness may suffice
to trigger the right.
The MFLA does not define the term “child.”
Although the use of “child” rather than “son
or daughter” may suggest that the General Assembly
intended that the law would apply to minor children, there
is no legislative history to guide us. Thus, the MFLA may
require that employers permit employees to use paid leave
to care for an adult child.
The law also states that employees must comply with company
policies and collective bargaining agreements when using
leave. A policy that limited use of sick leave to an employee’s
own illness would not be enforceable because it conflicts
with the law. However, employers may attempt to control
use of MFLA leave by requiring advance notice (insofar as
it is practical for the employee to give such notice) and
documentation of illnesses.
Finally, the MFLA prohibits employers from “discharging,
demoting, suspending, disciplining or otherwise discriminating
against” employees for using paid leave for family
illnesses. No fault attendance policies typically impose
points for all unplanned absences, including sick days.
Such points can lead to discipline or discharge. Under the
FMLA, points cannot be assessed under a no-fault attendance
policy if an employee’s absence is caused by a “serious
health condition” of the employee or a covered family
member. By contrast, the MFLA does not require that a family
member’s illness be “serious” to trigger
the leave right. Thus, the MFLA creates the anomaly that
an employee can be assessed points under a no-fault attendance
policy if he is absent for his own non-serious illness but
cannot be assessed points if he is absent to care for a
family member with that same non-serious illness.
What Should Employers Do To Comply?
Before the effective date of the law, employers should
review their leave policies. They may consider adopting
policies consistent with the new law such as (1) notice
or call-in procedures for employees who wish to use leave
or (2) verification procedures to validate that leave has
been taken for “illness.” In addition, employers
may choose to limit the amount of leave with pay that employees
will have available. Finally, employers should anticipate
how this leave will be administered to ensure, for example,
that attendance polices (such as no-fault policies) are
not applied in a manner that violates the MFLA and that
leave is tracked properly.
For assistance or more information on this law, please
feel free to contact any Shawe Rosenthal attorney.
September 16, 2008
Shawe
Rosenthal, LLP provides this publication for informational
purposes, and it should not be construed or relied upon
as legal advice. You should contact your Shawe Rosenthal,
LLP lawyer to discuss any questions that you may have concerning
your own situation.
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