On May 22, 2008, Governor O’Malley signed Maryland’s Flexible Leave Act into law. The new statute applies to all Maryland employers of 15 or more employees. Although the law does not require employers to provide paid time off if they do not already do so, it substantially expands the obligations of employers that do provide paid time off by requiring that employees be allowed to use such paid time off to cover the illness of family members.
The law permits employees to use any employer provided “leave with pay” to cover an absence occasioned by the illness of a child, spouse or parent. Under the law, “leave with pay” means any “time away from work for which an employee receives compensation.” It includes, but is not limited to, sick leave, vacation time and compensatory time.
Employee use of flexible leave is restricted only by the requirements that leave must be earned before use and that it must be used in compliance with the terms of the employer’s leave policies. An employee who earns more than one type of leave with pay may elect the type and amount of leave to be used. In addition, unlike the federal Family and Medical Leave Act (“FMLA”), there are no preliminary eligibility requirements, such as completion of a period of service (such as one year) or a minimum number of hours. An employee may use flexible leave as soon as it is earned.
Perhaps as significant as what the flexible leave law requires, is the law’s failure to address many important issues which have the potential to lead to employment disputes. For example, the law does not define the term “illness.” Thus, it is not limited to “serious health conditions” as is the case under FMLA. Similarly, the law does not define “child”, so employees may claim time off to care for an adult child. (FMLA is limited to children who are under 18 or incapable of self-care). The law also places no limit on the number of days which may be used and does not contain a notice requirement or medical certification requirement.
Because the law requires employees using flexible leave to comply with their employer’s leave policies, it is important that policies be drafted in a manner that will provide the employer 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. Employers may want to consider:
· imposing notice and 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
· imposing caps on paid leave if there are none, or reducing those which exist
The law also contains an anti-retaliation provision, which makes it illegal to take an adverse action against an employee who “exercises rights granted” under the law or who files a complaint or testifies in an action against the employer in an action for violation of the law.
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 restrict the taking of sick leave to the employee's illness, to ensure that employees are not sanctioned for absences permitted under the new law.