Legal Bulletins

In 2008, the General Assembly enacted the Maryland Flexible Leave Act which requires that employers of 15 or more employees allow employees to use paid time off to cover the illness of immediate family members. The Act became effective on October 1, 2008. Unlike the federal Family and Medical Leave Act (“FMLA”), there are no preliminary eligibility requirements, such as completion of a period of service or a minimum number of hours. An employee may use flexible leave as soon as it is earned.

Unfortunately, the Act was vague in many respects and left important issues unresolved. Some, but not all, of those issues have been addressed by recent amendments to the Act, which took effect immediately upon signing by the Governor on May 19, 2009. Among the most significant clarifications, the amended Act:

• Defines “child” as meaning an adopted, biological or foster child, a step child or legal ward who is either under 18 years old, or at least 18, but incapable of self-care due to a mental or physical disability.
  
• Defines “parent” as meaning an adoptive, biological, or foster parent, a stepparent, a legal guardian, or a person standing in loco parentis.
  
• Makes clear that leave with pay available to be used as flexible leave includes any paid leave that is earned and available to an employee whether based on hours worked or an annual grant of a fixed amount of time off, including sick, vacation, PTO and compensatory time.
  
• Excludes the following types of leave from the Act:

• A benefit provided under a plan subject to the federal ERISA statute
  
• An insurance benefit, including benefits from an employer’s self-insured plan
  
• Worker’s compensation and unemployment compensation
  
• Disability benefits

• Makes clear that the Act applies to any employee who is “primarily employed” in Maryland.
  
• Clarifies that the purpose of the Act is to allow employees to use flexible leave “under the same conditions and policy rules that would apply if the employee took leave for the employee’s own illness.”
  
• Clarifies that the Act does not extend or limit the leave available under the federal FMLA law.

The amendments also expand the Act’s anti-retaliation provision, which makes it illegal to take an adverse action against an employee who has taken leave “authorized” by the Act, has opposed a practice prohibited by the Act, or participated in an investigation or other proceeding under the Act.

However, the Maryland Act’s failure to define the term “illness” (perhaps its major flaw), was not addressed by the amendments. Thus, use of flexible leave is not limited to “serious health conditions”, as is the case under FMLA.

Because the Act provides that employees may only use flexible leave “under the same conditions and policy rules that would apply if the employee took leave for the employee’s own illness”, it is important that employers draft policies in a manner that will provide them with maximum protection. To the extent an employer’s policies do not restrict the use of paid leave, an employee’s designation of paid leave to care for an ill family member will be unlimited. Accordingly, employers may want to consider:

• imposing notice and advance scheduling requirements for taking paid leave,
  
• requiring status reports and/or call-in procedures,
  
• requiring a medical certification or doctor’s note from the family member’s physician,
  
• setting a minimum number of hours that paid leave can be taken per day, and/or
  
• imposing caps on paid leave if there are none, or reducing those which exist.

Employers should educate HR/payroll staff on how to properly account for flexible leave. It is also advisable that employers review absenteeism polices, many of which impose disciplinary actions based on the number of absences, to ensure that employees are not sanctioned for absences permitted under the Act.