On October 1, 2008, Maryland’s recently enacted “Flexible Leave Act” goes 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 new law will likely require most Maryland employers to revise their leave policies. Employees must be given the option of using any type of accrued, paid leave available to them (such as sick leave, vacation leave, compensatory time, personal time, “paid time off,” or other leave time) to use the leave when an “immediate family” member is “ill.” Neither “illness” nor “family member” is clearly defined in the law.
The law states that “immediate family””includes” a “child, spouse, or parent.” However, the definition of child is not limited to persons under the age of 18, so it presumably includes adult children. Additionally, it is not clear if the definition of “immediate family” is limited to these persons, so it is possible that it extends to grandparents, domestic partners, and perhaps even aunts and uncles.
The lack of a definition of “illness” is even more troubling. Although many employers would like to think the definition was meant to track the definition of “serious health condition” used in the Family and Medical Leave Act, there is no indication in the legislation as to what conditions were intended to be covered. Therefore, it is quite possible that any illness, no matter how minor, may be covered by the law.
The Flexible Leave Act does allow an employer to require employees taking paid leave for a family member’s illness to comply with the employer’s workplace policies. Therefore, if an employee taking sick leave for their own illness must give at least two hours advance notice of their absence, the employer can similarly require the employee taking leave for a sick child to give two hours advance notice.
So what should a Maryland employer do to comply with the law? The following pointers should help:
- Eliminate “no fault” absenteeism policies that impose disciplinary points or occurrences whenever leave is taken. Although it is legal to discipline an employee who is taking leave under the Flexible Leave Act if they fail to comply with the employer’s policies, an employer cannot take action against someone who takes leave under the Act and meets all the procedural requirements of the employer’s policy.
- Give serious thought to requiring employees who use sick leave for their own illness to produce a healthcare provider certification after a certain number of days off. Because the Flexible Leave Act permits employers to require employees to comply with attendance policies, an employer could impose a similar obligation on someone taking sick leave for an ill family member. However, it is not clear that the certification obligation could be imposed where the employee takes vacation, personal, or other leave.
- If not already doing so, employers should impose notice requirements for the use of leave. Employees should be required to give a certain number of hours of advance notice before using sick leave, and should be required to contact a designated individual. Likewise, employees using vacation or personal leave should be required to give advance notice and get pre-approval from a supervisor. This should reduce the opportunity for employees to spontaneously decide to take the day off under the guise of having an ill family member.
- Make sure you have a system in place to track the reasons taken for employee leave. Like absences taken for FMLA purposes, an employer cannot discipline an employee for absences taken for reasons covered by the Flexible Leave Act. Therefore, an employer must ensure that it has accurate records of the reasons why an employee is absent, especially if the absences are held against the employee in a performance evaluation or in disciplinary action.
- Be on the lookout for communications from the Maryland Chamber of Commerce and your local Society for Human Resources Management (“SHRM”) chapter regarding changes in the new law. These organizations intend to lobby the Maryland General Assembly for clarifying legislation this session which will, among other things, better define “illness” and “immediate family,” and also allow employers to impose certification requirements similar to those imposed by the FMLA.
As always, we intend to keep our clients apprised of further developments under the Flexible Leave Act, as well as other new developments under Maryland law. In the interim, please feel free to contact any one of our attorneys to get more information about your obligations under the statute.