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FMLA: Maryland

FMLA requirements for other states

Federal law and guidance on this subject should be reviewed together with this section.

Author: Susan A. P. Woodhouse, Littler

Summary

  • The Maryland Flexible Leave Act requires that covered employers (those with 15 or more employees) allow their employees to use their earned paid leave for the illness of a spouse (including a same-sex spouse), child or parent. See Purpose and Length of Leave.
  • Maryland's Parental Leave Act allows an eligible employee to take up to six workweeks of unpaid leave in any 12-month period for the birth of the employee's child and the placement of a child with the employee for adoption or foster care. See Parental Leave Act.
  • Maryland employers with 50 or more employees must provide eligible employees with a one-day leave of absence on the day that employee's immediate family member is leaving for or returning from active military duty outside of the US as a member of the US armed forces. See Family Military Leave.
  • Employers with 15 or more employees must provide the same leave benefits to employees whose disabilities are caused or contributed to by pregnancy or childbirth as are provided to employees with other temporary disabilities. See Pregnancy Disability Leave.
  • Maryland employers with 15 or more employees must provide reasonable accommodations to pregnant employees who are temporarily disabled. See Reasonable Accommodations for Disabilities Due to Pregnancy Law.
  • The Maryland Healthy Working Families Act (MHWFA) requires an employer with 15 or more employees to provide paid sick and safe leave, while an employer with fewer than 15 employees must provide unpaid sick and safe leave. See Paid Sick Leave.
  • Montgomery County has requirements pertaining to paid sick leave. See Local Requirements.

Family and Medical Leave, Generally

Generally, family and medical leave laws require covered employers to provide eligible employees with job-protected leaves of absence for qualifying reasons. The primary federal law governing leave is the Family and Medical Leave Act (FMLA). Employers covered under the FMLA may also be required to provide leave under the Pregnancy Discrimination Act (PDA) and the Americans with Disabilities Act (ADA).

While Maryland does not have a mini-FMLA as seen in some other states, Maryland employers with 15 or more employees may also need to allow their employees to use their earned paid leave to care for certain covered family members. See Maryland Flexible Leave Act.

Employers should note that leave required by a state or local law is not taken into account when determining the amount of leave provided by an employer for federal tax credit purposes under the federal tax reform law.

Same-Sex Marriage

Under the Defense of Marriage Act (DOMA), only opposite-sex married couples were allowed to take FMLA leave to care for their spouse. Initial rulings by the Supreme Court and rules issued by the Department of Labor on this topic provided FMLA rights to same-sex spouses based on whether a state recognized same-sex marriage. The definitive decision came when the Supreme Court ruled that the 14th Amendment: (1) requires a state to license a marriage between two people of the same sex; and (2) requires a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out of state. See Obergefell v. Hodges, +2015 U.S. LEXIS 4250 (U.S. June 26, 2015). Accordingly, same-sex marriage is legal nationwide, and couples lawfully married in any state, including Maryland, are entitled to FMLA spousal leave benefits.

A Maryland employer should also be careful if it seeks to confirm an employee's same-sex spousal relationship to ensure it does not discriminate in any way. An employer's practices regarding FMLA leave for employees in same-sex marriages should be handled in the same fashion as those in opposite-sex marriages (e.g., if an employer does not ask heterosexual employees for marriage licenses, it should be careful about asking homosexual employees for such documentation).

Apart from FMLA considerations, employers with employees residing in Maryland should look at existing policies that provide for leave based on spousal relationships, such as non-FMLA leave, bereavement leave or military leave. Policy language (such as how a spouse is defined) may need to be revised.

Maryland Flexible Leave Act

Employer Coverage

To be covered under the Maryland Flexible Leave Act (MFLA), an employer must employ 15 or more employees in the State of Maryland for each working day in each of 20 or more calendar weeks in the current or preceding calendar year.

The MFLA is designed to apply to covered employers that provide paid leave under the employer's policy or under the terms of a collective bargaining agreement.

Employers with 15 or more employees must also provide the same leave benefits to employees whose disabilities are caused or contributed to by pregnancy or childbirth as are provided to employees with other temporary disabilities.

+Md. LABOR AND EMPLOYMENT Code Ann. § 3-802.

Eligible Employees

Employees who have earned leave with pay provided by their employer may use their earned leave to attend to the illness of a child, spouse (including a same-sex spouse) or parent. An employee may only use paid leave that has been earned. If the employee earns more than one type of paid leave, the employee may choose the type and amount of paid leave to be used.

Employees using MFLA leave must comply with the terms of any applicable employment policy or collective bargaining agreement. If a collective bargaining agreement or employment policy provides greater benefits than provided by the MFLA, the collective bargaining agreement or employment policy prevails.

Employees must also be primarily employed in the State of Maryland. +Md. LABOR AND EMPLOYMENT Code Ann. § 3-802(a).

Purpose and Length of Leave

The MFLA allows employees to use their earned paid leave to care for their immediate family. +Md. LABOR AND EMPLOYMENT Code Ann. § 3-802(c). An immediate family member is defined as the employee's:

  • Child (i.e., an adopted, biological or foster child, stepchild or legal ward who is under the age of 18. However, the age ceiling is waived if the adopted, biological or foster child, stepchild or legal ward is incapable of self-care due to a mental or physical disability);
  • Spouse (including a same-sex spouse); or
  • Parent (i.e., adoptive, biological or foster parent, stepparent, legal guardian or person standing in loco parentis).

+Md. LABOR AND EMPLOYMENT Code Ann. § 3-802.

The MFLA does not specify any duration for the leave.

Unlike the FMLA, the MFLA does not include a minimum requirement that an illness be serious in order to qualify for coverage. Therefore, any illness will likely trigger paid leave rights under the MFLA. However, as stated above, an employee is only eligible for leave rights under the MFLA if he or she is eligible for paid leave, i.e., vacation or paid time off, under an employer's policies. If, for example, an employee is not eligible to use vacation leave during his or her first year of employment, that employee will not be eligible for paid leave during his or her first year of employment under the MFLA.

In addition, unlike the FMLA, the MFLA does not mention anything about needing a medical certification from a health care provider certifying that the immediate family member is in fact ill.

Compensation

The MFLA does not require that employers provide a paid leave of absence, only that employees be allowed to use any paid leave that they have earned under the employer's policies.

Leave with pay is defined as paid time away from work that "is earned and available to an employee" and includes sick leave, vacation time and compensatory time. Leave with pay does not include the following:

  • A benefit provided under an employee welfare benefit plan subject to the Employee Retirement Income Security Act (ERISA);
  • An insurance benefit, including benefits from an employer's self-insured plan;
  • Workers' compensation;
  • Unemployment compensation;
  • A disability benefit; or
  • A similar benefit.

The MFLA does not dictate how an employee's leave accrues under an employer's policy (e.g., who is eligible, whether there are waiting periods for accrual).

An employee who earns more than one type of leave with pay may elect the type and amount of leave with pay to be used. Moreover, an employer may deny paid leave under the MFLA if an employee violates the employer's leave policies, which can include sufficient notice and adequate documentation. +Md. LABOR AND EMPLOYMENT Code Ann. § 3-802(e).

A covered employer that provides leave with pay under the terms of a collective bargaining agreement or employment policy must allow an employee to use such earned leave to attend to the illness of a spouse (including a same-sex spouse), child or parent. An employer that provides leave with pay to an employee following the birth of a child must provide the same leave for the adoption of a child. +Md. LABOR AND EMPLOYMENT Code Ann. § 3-802(e).

This law does not affect leave granted under the FMLA. It neither extends nor limits leave available under the FMLA. +Md. LABOR AND EMPLOYMENT Code Ann. § 3-802(g).

Prohibited Actions

An employer may not take an adverse action (e.g., termination, demotion) because an employee has:

  • Requested MFLA leave;
  • Taken MFLA leave;
  • Opposed an unlawful practice; or
  • Filed a charge, testified, assisted or participated in an investigation under the MFLA.

In addition, an employer is prohibited from entering into an agreement with an employee in which the employee must waive MFLA leave entitlements. Any such agreement will be deemed void. +Md. LABOR AND EMPLOYMENT Code Ann. § 3-802(f).

Parental Leave Act

Maryland's Parental Leave Act (PLA) allows an eligible employee to take up to six workweeks of unpaid leave in any 12-month period for:

  • The birth of the employee's child; and
  • The placement of a child with the employee for adoption or foster care.

+Md. LABOR AND EMPLOYMENT Code Ann. § 3-1202(a).

The PLA applies to employers of at least 15 but not more than 49 employees in the state for each working day during each of 20 or more calendar workweeks in the current or preceding year. Thus, in contrast to the FMLA, the Maryland law covers smaller employers and applies only to family leave (not medical leave). +Md. LABOR AND EMPLOYMENT Code Ann. § 3-1201(c).

Employee Eligibility

An eligible employee is one who:

  • Requests parental leave from a covered employer;
  • As of the date leave begins, will have been employed by his or her employer for at least 12 months and for 1,250 hours during the previous 12 months; and
  • Works at a worksite where at least 15 employees work within a 75-mile radius.

The following individuals are not eligible for leave:

  • Independent contractors; and
  • Employees who work at a worksite in which the employer employs fewer than 15 employees within 75 miles of that employee's worksite.

+Md. LABOR AND EMPLOYMENT Code Ann. § 3-1201(b).

Notice Requirements

An employee seeking parental leave must notify the employer in writing at least 30 days prior to the start of the leave. However, an employee may begin parental leave without prior notice in the event of a premature birth or the unexpected placement of an adopted or foster child. +Md. LABOR AND EMPLOYMENT Code Ann. § 3-1203.

An employer may deny an employee's leave request if the denial is necessary to prevent substantial and grievous economic injury to the employer's operations, so long as the employer notifies the employee of the denial prior to the beginning of the leave. +Md. LABOR AND EMPLOYMENT Code Ann. § 3-1202(b).

Compensation and Benefits

Parental leave is unpaid. However, if an employer offers paid leave, the employer may require the employee, or the employee may elect, to substitute paid leave for any part or all of the parental leave period. +Md. LABOR AND EMPLOYMENT Code Ann. § 3-1202(c).

An employee who earns commissions as part of his or her compensation must continue to receive earned commissions that come due during the leave period.

During the leave period, the employer must maintain group health coverage for the employee under the same terms and conditions that would apply if the employee had not taken leave. If the employee fails to return to work after the parental leave period, the employer may recover any premiums paid to maintain the employee's group health coverage, unless the employee's failure to return to work was due to circumstances beyond his or her control. The employer may recover the premiums by deducting the amounts from the employee's final wages.

+Md. LABOR AND EMPLOYMENT Code Ann. § 3-1205.

Reinstatement

Upon return from parental leave, an employee is entitled to be reinstated to:

  • The job he or she held at the time the leave began; or
  • An equivalent position with equivalent benefits, pay and other terms of employment.

An employer may deny reinstatement if the denial is necessary to prevent substantial and grievous economic injury to the employer's operations, and the employer notifies the employee of the denial upon determining that such injury would occur.

An employer may terminate an employee out on parental leave only for cause, for example, discovery of misconduct on the part of the employee.

+Md. LABOR AND EMPLOYMENT Code Ann. § 3-1204.

Discrimination

An employer is prohibited from terminating or otherwise discriminating against an employee for:

  • Requesting or taking parental leave;
  • Making a complaint to the employer, Secretary of Labor or another person; and
  • Bringing or participating in an action related to a violation of the Parental Leave Act.

The Maryland Division of Labor and Industry enforces the provisions of the PLA. An employee may bring an action against the employer directly, and the Commissioner of Labor and Industry may also bring an action. +Md. LABOR AND EMPLOYMENT Code Ann. § 3-1209.

Interaction With Other Leaves

The PLA is not intended to discourage employers from adopting or retaining a more generous leave policy. +Md. LABOR AND EMPLOYMENT Code Ann. § 3-1211. Leave taken under the PLA may run concurrently with leave taken under the FMLA.

Employer Steps

In order to ensure compliance with the PLA, employers should:

  • Create an appropriate PLA policy and leave request form;
  • Train managers and supervisors on the PLA's requirements, specifically the antidiscrimination and notice provisions; and
  • Create a process for employees to make requests under the PLA.

Family Military Leave

Maryland employers with 50 or more employees must provide eligible employees with a one-day leave of absence on the day that employee's immediate family member is leaving for or returning from active military duty outside of the United States as a member of the United States armed forces. An employee's immediate family members include:

  • Spouses, including same-sex spouses;
  • Parents, including stepparents;
  • Children or stepchildren; and
  • Siblings.

Employees are eligible for this leave if the employee:

  • Is employed by a covered employer on a full-time or part-time basis;
  • Has worked for the employer for the last 12 months; and
  • Has worked for at least 1,250 hours during the last 12 months.

+Md. LABOR AND EMPLOYMENT Code Ann. § 3-803(2).

Employers are not required to pay employees for the day of leave; however, employers may not require employees to use their paid leave (e.g., sick, vacation or other paid time off benefits). Employers may run an employee's one-day leave concurrently with qualifying exigency leave (by way of the catch-all category additional activities) under the federal Family and Medical Leave Act. Employers should have a tracking system to track concurrent leaves.

Employers may require employees to provide evidence to verify that leave is being taken appropriately (e.g., the immediate family member's military order).

Pregnancy Disability Leave

Employers with 15 or more employees must provide the same leave benefits to employees whose disabilities are caused or contributed to by pregnancy or childbirth as are provided to employees with other temporary disabilities.

Written and unwritten employment policies and practices involving matters such as commencement and duration of leave, the availability of extensions, reinstatement and payment under any health or temporary disability insurance or sick leave plan must be applied to disabilities due to pregnancy or childbirth on the same terms and conditions as they are applied to other temporary disabilities.

+Md. STATE GOVERNMENT Code Ann. § 20-601; +Md. STATE GOVERNMENT Code Ann. § 20-609.

Reasonable Accommodations for Disabilities Due to Pregnancy Law

Maryland employers with 15 or more employees must provide reasonable accommodations to employees who are temporarily disabled due to pregnancy unless doing so would cause the employer an undue hardship. +Md. STATE GOVERNMENT Code Ann. § 20-601; +Md. STATE GOVERNMENT Code Ann. § 20-609.

While the term temporarily disabled is not defined by the law, employers may require employees to provide a medical certification from a health care provider (to the same extent a certification is required for other temporary disabilities) that includes:

  • The date the reasonable accommodation became medically advisable;
  • The probable duration of the accommodation; and
  • An explanation as to the medical advisability of the accommodation.

+Md. STATE GOVERNMENT Code Ann. § 20-609.

Maryland's law goes beyond the reasonable accommodation requirements of the federal Americans with Disabilities Act (ADA). For example, if a pregnant employee (in Maryland) provides her employer with notice of a temporary disability, the employer must provide certain reasonable accommodations even if the accommodation removes an essential function of the job (whereas under the ADA an employer may reject an accommodation that eliminates an essential job function). In addition, if an employee requests an accommodation, the onus is on the employer to explore all possible ways to accommodate the employee - which must include:

  • Changing the employee's job duties;
  • Changing the employee's work hours;
  • Relocating the employee's work area;
  • Providing mechanical or electrical aides;
  • Transferring the employee to a less hazardous or less strenuous position; or
  • Providing a leave of absence.

Employers must still engage in the interactive process.

Employers must also post a notice regarding the rights of pregnant employees in a conspicuous location and include a section in any employee handbook concerning an employee's right to a reasonable accommodation and leave for a disability caused or contributed to by pregnancy. See Maryland Pregnant and Working Notice Poster. +Md. STATE GOVERNMENT Code Ann. § 20-606; +Md. STATE GOVERNMENT Code Ann. § 20-609.

For more information on this topic, please see Disabilities (ADA): Maryland.

Adoptive Parents Leave

While Maryland law does not require employers to provide paid leave for adoptive parents, an employer that does provide paid leave to an employee following the birth of a child must provide the same leave with pay to an employee when a child is placed with the employee for adoption. +Md. LABOR AND EMPLOYMENT Code Ann. § 3-801(c).

The Maryland Healthy Working Families Act (MHWFA) requires an employer with 15 or more employees to provide paid sick and safe leave, while an employer with fewer than 15 employees must provide unpaid sick and safe leave. +2017 Bill Text MD H.B. 1.

The state issued FAQs that are for informational purposes only and may be subject to change. Accordingly, an employer should exercise caution when relying on the FAQs.

Covered Employers

An employer includes:

  • A person that acts directly or indirectly in the interest of another employer with an employee; and
  • A unit of state or local government.

+Md. LABOR AND EMPLOYMENT Code Ann. § 3-1301.

An employer's size is determined by calculating the average monthly number of employees employed by the employer during the immediately preceding year. All employees must be counted, regardless of whether they are full-time, part-time, temporary, seasonal or ineligible for sick and safe leave benefits. +Md. LABOR AND EMPLOYMENT Code Ann. § 3-1304.

Eligible Employees

The MHWFA does not apply to an employee who:

  • Works fewer than 12 hours a week for an employer;
  • Is employed in the construction industry and is covered by a bona fide collective bargaining agreement that expressly waives the MHWFA's requirements in clear and unambiguous terms;
  • Works in a health or human services industry on an as-needed basis;
  • Is a properly classified independent contractor;
  • Is a real estate salesperson or a licensed associate real estate broker who:
    • Is affiliated with a licensed real estate broker under a written agreement;
    • Is paid on a commission basis; and
    • Qualifies as an independent contractor for federal tax purposes;
  • Is under the age of 18 before the beginning of the year;
  • Is employed in the agricultural sector on an agricultural operation;
  • Is employed by a temporary services agency to provide temporary staffing services to another person if the temporary services agency does not have day-to-day control over the work assignments and supervision of the individual while the individual is providing the temporary staffing services; or
  • Is directly employed by an employment agency to provide part-time or temporary services to another person.

+Md. LABOR AND EMPLOYMENT Code Ann. § 3-1301; +Md. LABOR AND EMPLOYMENT Code Ann. § 3-1303.

Qualifying Reasons for Leave

Eligible employees may use sick and safe leave for the following reasons:

  • To care for or treat the employee's mental or physical illness, injury or condition;
  • To obtain preventive medical care for the employee or the employee's family member;
  • To care for a family member with a mental or physical illness, injury or condition;
  • Maternity or paternity leave; and
  • Absences related to domestic violence, sexual assault or stalking committed against the employee or a family member, and leave is being used:
    • By the employee to obtain for the employee or a family member:
      • Medical or mental health attention;
      • Services from a victim services organization; or
      • Legal services or proceedings; or
    • During the time that the employee has temporarily relocated.

+Md. LABOR AND EMPLOYMENT Code Ann. § 3-1305.

A family member includes an employee's:

  • Child;
  • Parent;
  • Spouse;
  • Grandparent;
  • Grandchild; and
  • Sibling.

+Md. LABOR AND EMPLOYMENT Code Ann. § 3-1301.

Accrual and Use of Leave

Employees accrue one hour of sick and safe leave for every 30 hours worked, up to 40 hours in a year. Accrual begins February 11, 2018 (the law's effective date), or when employment begins, whichever is later. Frontloading is allowed.

Employees may begin using accrued leave after the first 106 calendar days of employment, up to 64 hours of leave in a year.

Unused accrued leave may be carried over to the following year, up to 40 hours. An employee may bank a maximum of 64 hours of leave (accrual plus carryover) at any time.

+Md. LABOR AND EMPLOYMENT Code Ann. § 3-1304.

Interaction With Other Laws

Generally, the MHWFA does not preempt, limit or otherwise affect federal laws or regulations that govern employees, including the federal FMLA. Time taken under the MHWFA may be used concurrently with leave provided under the federal FMLA where the leave is FMLA-eligible.

There are numerous types of other leaves that may be available to Maryland employees. While the MHWFA does not specifically mention its relationship with these laws, it does state that it does not preempt any other law that provides for sick and safe leave benefits that are more generous than those required under the MHWFA.

For more details on the MHWFA, please see Other Leaves: Maryland.

Interaction of Leave Laws

Other types of leave may be available to Maryland employees - some required by federal, state or local law, and some provided by company policy, as well as several sources of income replacement. See Other Leaves: Maryland. While some of these laws can run at the same time, others cannot.

Remain alert to the various types of leave available and take care to track an employee's leave of absence, including:

  • The date the leave begins;
  • The type of leave; and
  • The expected return date.

Local Requirements

Montgomery County Paid Sick Leave

Covered employers must comply with the Montgomery County Earned Sick and Safe Leave Law (ESSLL). Montgomery County employers must also be aware of paid sick leave compliance responsibilities under the Maryland Healthy Working Families Act.

Covered Employers

Employers that operate or do business in Montgomery County and that have one or more employees are subject to the ordinance. The federal, state and local governments other than Montgomery County are excluded from coverage.

Eligible Employees

An employee who regularly works (i.e., permitted or instructed to work) more than eight hours per week is eligible to accrue sick and safe time for hours worked in Montgomery County.

Qualifying Reasons for Leave

Employees may use earned sick and safe leave for the following purposes:

  • To care for or treat the employee's or a family member's mental or physical illness, injury or condition;
  • To obtain preventive medical care for the employee or a family member;
  • The birth of the employee's child or the placement of a child with the employee for adoption or foster care;
  • To care for a newborn, newly adopted or newly placed child within one year of birth, adoption or placement;
  • If a public official closes the employer's place of business due to a public health emergency;
  • If a public official closes the employee's family member's school or childcare center due to a public health emergency;
  • To care for a family member if a health care provider or public official determines that the family member's presence in the community would jeopardize public health due to exposure to a communicable disease;
  • To obtain medical, legal, law enforcement and/or social services for the employee or a family member due to an incident of domestic violence, sexual assault or stalking; or
  • During the time the employee has temporarily relocated due to domestic violence, sexual assault or stalking.

A family member includes the employee's:

  • Parent or parent-in-law;
  • Spouse;
  • Grandparent and grandparent's spouse;
  • Grandchild; and
  • Sibling and sibling's spouse.

Montgomery County's ordinance is more expansive than the Maryland Healthy Working Families Act in that leave may be used to care for a sibling's or a grandparent's spouse.

Accrual and Use of Leave

Eligible employees begin to accrue earned sick and safe leave for all work performed in Montgomery County when employment begins. Leave accrues at the rate of one hour for every 30 hours worked in the county. The maximum cap on accrual of leave depends on the size of the employer.

  • Employers with five or more employees: accrual is capped at 56 hours of paid leave per calendar year.
  • Employers with fewer than five employees: accrual is capped at 32 hours of paid leave and 24 hours of unpaid leave per calendar year.

An employee may use leave after the 90th day of employment, up to 80 hours per year.

Interaction With Other Laws

Earned sick and safe leave may be used concurrently with leave provided under other state and federal laws, including the Maryland Flexible Leave Act (to care for a child), the state Parental Leave Act (for the birth or placement of a child) and the federal FMLA.

For more details on the Montgomery County ordinance, please see Other Leaves: Maryland.

Future Developments

There are no developments to report at this time. Continue to check XpertHR regularly for the latest information on this and other topics.

Additional Resources

Maryland Department of Labor