Mid-Atlantic Health Law TOPICS

Maryland’s Flexible Leave Act will go into effect on October 1, 2008. The new law applies to all Maryland employers with 15 or more employees. Although the Act does not require employers to provide paid time off, the Act substantially expands the obligations of employers that do, by allowing employees to use all types of 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 leave 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.

A. Unanswered Questions

Unfortunately, the Flexible Leave Act fails to address many important issues that have the potential to lead to 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.” Therefore, 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 itself also places no limit on the number of days that may be used, and does not contain a notice requirement or medical certification requirement.

B. Employer Responses

However, the law does require employees using flexible leave to comply with their employer’s leave policies. Therefore, employers will want to draft those policies in a manner that will provide the employer with maximum protection. Accordingly, employers may want to consider:

1. Imposing notice and scheduling requirements for taking paid leave.

2. Requiring status reports and/or call-in procedures.

3. Requiring a medical certification or doctor’s note from the family member’s physician.

4. Setting a minimum number of hours that paid leave can be taken per day.

5. Adopting a vesting schedule that provides a minimum period of service before certain paid leave accrues, and one that identifies the pace at which leave accrues, if such policies do not already exist.

6. Imposing caps on paid leave, if there are none, or reducing those that exist.

The law also contains an anti-retaliation provision, that 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 also educate HR/payroll staff about properly accounting for flexible

leave. In addition, employers should 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 new law.