Maryland General Assembly Passes Paid Family and Medical Leave – What’s Next for Employers?
By Fiona W. Ong - Shawe Rosenthal LLP
April 6, 2022
If this bill becomes law, it will have a significant impact on all employers with Maryland employees. It provides for up to 12 weeks of paid leave for reasons that are mostly covered by the federal Family and Medical Act, and an additional 12 weeks if an employee requires both leave for their own serious health condition and to care for a child after birth/adoption/foster placement. There are many reasons why this bill is problematic for employers, as detailed below, which is why the Maryland Chamber of Commerce is urging employers to support a veto by Marlyland Governor Larry Hogan and to contact their state Senators to request that they not override any veto.
Many employers, particularly larger ones with generous leave policies, believe this bill will not really affect them. They are wrong. Among the many significant concerns of this bill are the following:
• Although a state fund will be created to pay the benefits, the bill actually provides for leave, not just benefits to cover the leave. And the State approves the leave, not the employer. Moreover, there is no real way for the employer to challenge the need for leave or the amount of leave granted.
• Employees who have worked 680 hours for any employer – not just their current one – are eligible for this paid leave benefit. So FMLA-ineligible employees will get the leave, in most cases starting immediately on the first day of employment. And employers who are not covered by the FMLA will now have to provide extended leave to their employees.
• The bill provides for 12 weeks of paid leave for substantially the same reasons as the federal FMLA: the employee’s own serious health condition, to care for a family member with a serious health condition, military family reasons, and to care for a new child after birth/adoption/foster placement/kinship care (i.e. parental bonding). BUT, if the employee takes 12 weeks of leave for their own serious health condition, they will get an additional 12 weeks for parental bonding leave and vice versa. So an employee can take up to 24 weeks of paid leave in a year.
• The definition of a family member goes far beyond FMLA – including grandparents, grandchildren, siblings, and parents-in-law. Parental bonding leave includes placement of a child in “kinship care.”
• Employers will be covered by the law unless they provide benefits in excess of what the law requires. So that means unless an employer is providing up to 12 paid weeks for self/extended family/parental bonding reasons, plus an additional 12 paid weeks if an employee takes leave for both their own serious health condition and parental bonding reasons, they will be subject to the law.
• There is language in the bill that the employee must take any employer-provided leave first. The proponents are taking the position that this language supports the argument that the employer-provided paid leave does not run concurrently with this State-mandated paid leave, and that the full 12/24-week paid family and medical leave benefit kicks in after the employer leave is exhausted.
• This program is funded by contributions from both the employer and employee that is a certain percentage of employee pay. That percentage and the split have not yet been established. There is no cap on what the overall contribution amount will be, and it can be raised periodically by the State without additional action from the General Assembly.
This is obviously a bill that will greatly impact all employers with Maryland employees. We will be providing a detailed summary of the provisions of the bill in our annual update of new Maryland laws, which will be issued next week. And we will keep you posted on the Governor’s and General Assembly’s next steps with regard to this bill.
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