MARYLAND ENACTS FLEXIBLE LEAVE LAW

On May 22, 2008, Governor O’Malley signed into law Maryland’s Flexible Leave Act, which entitles employees to use accrued paid leave for an illness of an immediate family member.

The Requirements of the Law

The Flexible Leave Act applies to all employers in Maryland with 15 or more employees. It does not require an employer to provide paid leave; however, if leave with pay is provided by policy or pursuant to a collective bargaining agreement, the employee is entitled to use such paid leave to care for a parent, spouse or child. Under the law:

• Immediate family member includes a spouse, parent or child.
• Leave with pay includes vacation, sick leave, and compensatory time.
• Only leave that has been earned by the employee may be used.
• An employee who earns more than one type of leave with pay may elect the type and amount of leave with pay to be used.
• The employee must comply with the company’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 law does not define what constitutes “illness” or define “child.” The only limit on the amount of leave that can be used under the law is the amount of earned paid leave that the employee has under company policy.

FMLA Limits Do Not Apply to Flexible Leave

The Flexible Leave Act complicates an employer’s leave administration burdens and expands employee leave rights well beyond those available under the Family and Medical Leave Act (“FMLA”). As noted, unlike the FMLA, the Flexible Leave Act leaves important terms like “illness” and “child” undefined. Other differences demonstrate the burdens created by the Maryland law. For example, FMLA need not be paid and is limited to medically-certifiable serious health conditions of the employee or covered family members. Employers that permit or require the use of paid leave concurrently with FMLA leave can control the form of paid leave that is taken. By contrast, the Flexible Leave Act allows employees to control the use of their earned paid leave for any family illness. Whereas FMLA applies only to larger employers (with 50 or more employees) the Flexible Leave Act applies to small employers (15 or more employees). FMLA also imposes service and hours eligibility requirements. Flexible Leave, by comparison, is available as soon the employee has earned paid leave.

Recommended Actions

The Flexible Leave Act states that an employee is required to comply with the terms of company policy or a collective bargaining agreement (unless that policy or agreement affords an employee more liberal leave rights). Thus, before the October 1, 2008 effective date of the Act, companies may wish to review their policies in order to add limits or controls that are not inconsistent with the new law. For example, company policy may be used to (1) impose notice or call in procedures on employees who wish to use leave; (2) require verification procedures to validate that leave has been taken for “illness” of a “family member.” In addition, companies may wish to impose greater limits on leave accrual or impose caps (or reduce existing caps) on leave accrual.

An employer also should specify that Flexible Leave will run concurrently with FMLA leave where the family member’s illness qualifies as an FMLA “serious health condition.” Finally, employers should anticipate how this leave will be administered to ensure, for example, that attendance polices are not applied in a manner that violates the Flexible Leave law and that leave is tracked properly. For assistance or more information on this law, please feel free to contact any Shawe Rosenthal attorney.

May 22, 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.