February 5, 2023

Volume XIII, Number 36

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February 03, 2023

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February 02, 2023

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Maryland Enacts New State Paid Family and Medical Leave Entitlement

Maryland recently joined nine other states (and the District of Columbia) in providing employees in the state with a right to paid family and medical leave.  Although employer contributions to the paid family and medical leave program will not begin until 2023 and employees may not apply for benefits until 2025, when the law goes into effect it will dramatically expand the leave rights available to Maryland employees because the law applies to employees and employers who are not covered by the federal Family and Medical Leave Act (FMLA). 

When the new paid family and medical leave program, employees will be entitled to take up to either 12 or 24 weeks of paid leave per year for the following reasons:

  • To care for a newborn child or a child newly placed for adoption, foster care, or kinship care.

  • To care for a family member with a serious health condition.

  • To attend to the employee’s own serious health condition that prevents the employee from performing the functions of his or her position.

  • To care for a military servicemember with a serious health condition resulting from military service.

  • Due to the deployment of a family member for military service.

Ordinarily, an employee is entitled to a total of 12 weeks of leave per year, but if an employee takes leave for both the birth or placement of a child and the employee’s own serious health condition, the leave entitlement expands to a maximum of 24 weeks. The employee is entitled to paid benefits from a state-operated fund in a percentage of their average wages capped at $1,000 per week.  The paid leave fund is funded by employer and employee payroll tax contributions.  Although all employers in Maryland must provide leave, only employers with 15 or more employees (apparently, company-wide) must contribute to the state fund.  Alternatively, employers may establish self-funded private employer plans to provide paid leave, in which case they need not contribute to the state fund.  Any leave the employee takes runs concurrently to their FMLA leave entitlement, if any. 

The new paid leave law expands federal FMLA in several ways that will increase the number of employees entitled to leave. First, all employers with one or more employees in Maryland are covered by the law, dispensing with FMLA’s requirement that the employer have 50 or more employees within a 75-mile radius.  Second, employees need only be employed for 12 months and work 680 hours in that period to be eligible, decreasing FMLA’s 1,250 hour threshold.  Third, as noted above, employees can in some circumstances be entitled to 24 weeks of leave in a year, doubling the 12 week entitlement under FMLA.  Finally, employees are entitled to take intermittent leave (i.e., leave in small chunks rather than a continuous leave period) for all qualifying reasons, whereas FMLA does not permit intermittent leave for the birth or placement of a child in the absence of the employer’s agreement. 

As under the federal FMLA, employees are entitled to reinstatement to their former position upon return from leave.  However, the law potentially expands employee job protections by providing that an employee may be terminated only “for cause” while on leave.  It is unclear whether a termination due to a reduction in force or position elimination, which may be permissible under FMLA, would qualify as a “for cause” termination, or whether “cause” will require some affirmative misconduct by the employee.  Because the new law allows employees to recover up to three times the value of lost wages and other compensation, as well as reasonable attorney’s fees, in the event of a violation, employer missteps could carry significant consequences.

The new Maryland leave entitlement is a reminder to employers that employee leave and other protections continue to proliferate at the state and local level.  As employers grow increasingly comfortable with remote work as a long-term arrangement, they should remain aware that many state laws, like Maryland’s new law, can be triggered by having a single employee working in the state – even if the employee is working from home.  Employers will need to keep track of the locations from which their employees are working (even as employees are increasingly mobile) and be aware of any specific leave or other entitlements under the laws of those jurisdictions.

© Polsinelli PC, Polsinelli LLP in CaliforniaNational Law Review, Volume XII, Number 101

About this Author

Jack Blum Polsinelli Employment Attorney

Jack Blum is an associate in the firm’s Employment Disputes, Litigation, and Arbitration practice, where he represents employers in connection with a wide range of employment law issues. Jack has extensive experience in defending employers against claims by their employees in federal and state courts, as well as before government agencies like the EEOC, Department of Labor, and state human rights commissions. Jack aggressively defends his client’s personnel practices and decisions while not losing sight of their underlying business goals and objectives. Jack represents clients in all...