Paid Family and Medical Leave Comes to Maryland

Paid family leave will soon be a reality for all Maryland workers, but the move wasn’t lacking in controversy. State lawmakers had to override the governor’s veto to provide the time off.

The “Time to Care Act of 2022” provides workers with up to 12 weeks of partially paid leave starting in 2025 for a worker’s “serious health condition” or to allow an employee to care for a family member. An additional 12 weeks of leave is available in certain circumstances.

Employers with one or more employees will have to provide the state-required leave. “The new law provides a ‘drastic increase’ in the number of Maryland employees and employers who will be covered by a paid leave requirement,” Jack Blum, an attorney in the Washington, D.C. office of Polsinelli LLP, said in an interview.

AARP Maryland State Director Hank Greenberg said the legislation will “ensure the financial security of Maryland’s 771,000 family caregivers.”

Who must comply?

This law will affect Maryland’s small and mid-size businesses.

However, only employers with 15 or more employees must contribute to the state fund that pays for the leave. Those contributions start in October 2023.

By contrast, private-sector employers with 50 or more employees must comply with the federal Family and Medical Leave Act (FMLA), which provides eligible employees 12 weeks of unpaid leave. Regardless of the number of employees, public employers must also comply with the FMLA.

Who pays?

The leave will be funded by both employer and employee contributions. The amount that each is required to pay will be determined no later than June 2023.

The state will contribute to the fund for workers who make less than $15 an hour.

Eligible workers

Maryland lawmakers set a lower threshold for employee eligibility than the one found under the FMLA.

Employees are eligible for leave under state law after they have worked a minimum of 680 hours in the 12 months before the date on which leave begins.

Blum also mentioned that part-time employees can qualify for the Maryland leave.

He also commented that the lesser number of hours isn’t a surprise. He pointed out that other jurisdictions also require fewer hours than the FMLA. But combining that with the reduced number of employees is a major change from the FMLA requirements.

Workers have to achieve 1250 hours under the FMLA before they are eligible to take protected leave.

Self-employed individuals can also choose to take part.

Remote employees

Remote employees in Maryland are covered by the state’s law.

Blum explained that if a Connecticut employer has only one employee in Maryland, that employee wouldn’t be covered under the FMLA but would be covered under the state law.

Length of leave and pay

Workers can take up to 12 weeks of leave beginning in 2025 and receive up to 90% of their average weekly wage, capped at $1,000.

Longer-term leave is available. For example, suppose “an eligible worker takes leave for both the birth or placement of a child and for the employee’s serious health condition. In that case, the worker can take up to 24 weeks of leave,” Blum said.

Leave under the Maryland law runs concurrently with FMLA leave.

Reason for leave

Leave can be taken for several reasons, including:

• A covered worker’s serious health condition that leaves the worker unable to do their job
• The care of a family member with a serious health condition
• To care for a child during the first year of birth or after placement of a child from foster care, kinship care, or adoption
• The care of a member of the armed forces who is the covered worker’s next of kin
• An emergency arising out of the deployment of a service member who is related to the covered worker

Defining family member

The definition of a family member is broad. In this context, family members include:

• The covered worker’s spouse
• Children — whether biological, adopted, foster, or stepchild
• A child for whom the covered worker has legal or physical custody or guardianship
• A child for whom the covered worker acts as a parent
• The covered worker’s parents, whether adoptive, foster, or stepparent of the covered worker
• The covered worker’s legal guardian or a person with whom the worker had a parental relationship as a child
• Grandparents, including biological, adoptive, foster, step-grandparents of the covered worker
• Grandchildren, including biological, adoptive, foster, or step-grandchild

Other leave must be exhausted

Maryland workers must exhaust their employer-provided leave before receiving benefits under the new law.

Intermittent leave

Intermittent leave is allowed under the Maryland legislation. The minimum allowable increment is 4 hours.

According to Blum, the Maryland law allows employees to take intermittent leave for any type of permitted absence. However, under the FMLA, employers don’t have to allow intermittent leave for the birth, adoption, or placement of a child from foster care. “So, if an employee is taking FMLA maternity or paternity leave, they generally take a block of 12 weeks off,” he said. However, under the Maryland law, a worker can take 2 days off a week or work half-days, etc. “This type of schedule is more burdensome to employers,” he said.

Job protection

“Job protection for workers on leave under the Maryland law seems to be more stringent than that required under the FMLA,” Blum said. Similar to the FLMA, the Maryland statute provides job protection during leave. Upon return, the employee must be given an “equivalent position.”

But the Maryland statute expressly notes that the employment of a worker who is out on leave can only be ended “for cause.” A “for cause” termination refers to employee misconduct or job non-performance.

However, the state statute does provide that Maryland employers can deny job restoration if the employer decides that doing so would create “substantial and grievous economic injury” to the employer’s operations.

Continued health benefits

If provided, health benefits must be continued while workers are out on leave.

Employee notice requirement

Employees must follow the employer’s notice or procedure requirements for requesting leave as long as those requirements do not interfere with the employee’s ability to use leave.

Employers can require that employees provide written notice of leave at least 30 days before the need for leave if the need for leave is foreseeable. However, if leave is not foreseeable, the employee must supply notice as soon as practicable.

Employer notice requirement

At the time of hire and once a year thereafter, an employer must supply a written notice to each employee that explains the rights and duties of the employee under the state law.

In addition, the employer must notify the employee within 5 business days of their eligibility to take leave; when an employee requests leave, or when an employer knows that an employee’s leave might be for a reason allowed under the new law.

The notice must include several elements such as the:

• Employee’s right to file for the benefit
• Procedure for filing a claim
• Right to file a complaint
• Employee’s right to have job protection

The state’s Department of Labor will provide the notices.

Equivalent employer-provided plan

If an employer provides a private plan that meets or exceeds the requirements of the state-required program, then the employer is in compliance with the new law.

Under those circumstances, the employer and employees are exempt from having to make contributions to the state plan.

However, employers have to submit their plan to the state’s Labor Department for approval.

Collective bargaining

A collective bargaining agreement cannot diminish an employee’s right to benefits under the new law. A waiver of an employee’s rights under the new law is against public policy and is void.

The governor’s veto

The paid leave program was not without opposition. Republican Governor Larry Hogan vetoed the bill on April 8, 2022, and the legislature overrode the veto the next day.

In a letter to lawmakers explaining his action, Hogan called the legislation an “irresponsibly crafted, rushed piece of legislation that unfairly penalizes the hundreds of thousands of hardworking men and women who own and operate small businesses in Maryland.”

Hogan criticized several aspects of the legislation, such as the cost and timing. He called the law “a new $1.6 billion regressive statewide payroll tax,” which is going into effect two years after a “devastating” global pandemic.

He noted that having to hold a job open for as many as 24 weeks puts an “extreme burden on the employer.”

Hogan also raised concerns about lawmakers’ failure to determine the contribution rates that employers must make to fund the leave program.

The Chamber of Commerce also opposed the leave. The Maryland Chamber said it was “extremely concerned about the additional costs and administrative burden to employers, especially for small businesses and non-profits, at a time when they can least afford it.”

Hogan’s veto of the paid leave program isn’t the first time that he and the Maryland legislature have disagreed on paid leave. Hogan vetoed an attempt to provide paid sick leave. The following year, Maryland lawmakers overrode that veto in January 2018.

Conclusion

Blum pointed out that there’s time before the new Maryland family and medical paid leave requirement goes into effect. “In the interim, employers, especially smaller businesses that aren’t FMLA-eligible, should prepare leave policies and procedures addressing the time off,” he said.

An increasing number of states are adopting the popular employee benefit. Paid family leave for Connecticut workers went into effect earlier this year.