Maryland General Assembly Clarifies Flexible Leave Act

Eric Paltell
Eric Paltell
05/19/2009

On October 1, 2008, Maryland’s Flexible Leave Act (“MFLA”) went into effect.  The law, which applies to employers with 15 or more employees, requires businesses that provide employees with any form of paid leave to permit employees to use such leave for the illness of an immediate family member.

The original version of the MFLA left many questions unanswered. For example, neither “illness” nor “immediate family member” was defined in the law. Similarly, it was not clear whether employees could use short-term disability leave to care for an ill family member, nor was it clear whether employers could impose notice requirements or point systems on leave taken for MFLA purposes.

In response to concerns from the employer community, the Maryland Chamber of Commerce (including Employment Relations Committee member Eric Paltell) and a coalition of employer and employee interest groups worked together to draft and introduce legislation designed to clarify the terms of the MFLA. On May 19, 2009, Governor O’Malley signed the new legislation (Senate Bill 562) into law. Because it is emergency legislation, the new law takes effect on the day the bill was signed by the Governor.

The corrective legislation includes a number of changes that should make application of the MFLA easier for employers. Key provisions include:

  • new language limiting MFLA rights to persons who are “primarily employed” in the state of Maryland.  This means an employee of a Maryland employer who spends most of their time out of state would not be covered by the law;
  • adoption of definitions of “child” and “parent” which follow the Federal Family and Medical Leave Act. These definitions make clear that MFLA leave can only be taken for children under the age of 18 or adult children who are incapable of self-care by reason of disability;
  • a new definition of “leave with pay” which limits the leave that may be taken to that which is “earned and available to employees;”
  • clarification that “leave with pay” that may be taken for MFLA reasons does not include short-term disability leave or other insurance benefits;
  • clarification that an employee taking MFLA leave may be required to follow the same policies and be subject to the same rules as employees taking leave for their own illness. This means that an employer which applies a “point” or “occurrence” system to absences taken for an employee’s own illness could apply a similar system to leave taken for MFLA purposes.

The corrective legislation does not add a definition of “illness” to the MFLA.  However, the consensus of the committee which drafted the legislation is that the law is intended to extend coverage to conditions that might not be severe enough to be covered under the Federal Family and Medical Leave Act.

Although the MFLA will remain something of a burden for most Maryland businesses, many of the questions which stumped employers trying to apply the new law have now been answered. Perhaps most significantly, it is now clear that leave cannot be taken to care for adult children, except in limited circumstances, and that employers can impose the same rules for MFLA leave that are applied to personal leave.

Please do not hesitate to contact any of our attorneys if you have any questions about the MFLA and its application to your company’s leave policies

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