On 9 April 2022, Maryland became the latest state to establish paid family and medical leave for employees with the enactment of the Time to Care Act of 2022 (the “Act”). The Act creates a family and medical leave fund (the “Fund”) which provides paid leave benefits to covered employees and participating self-employed individuals. The Fund will be financed by contributions from (i) employees, (ii) employers with 15 or more employees, and (iii) participating self-employed individuals. On or before 1 June 2023, Maryland’s Secretary of Labor will establish the the total rate of contribution and the percentage of the total rate of contribution to be paid by certain employees and employers. Paid leave will be available starting 1 January 2025, with paid leave benefits made directly by the state to eligible individuals from the Fund.
Fund Contributions
Employer contributions to the paid family and medical leave program will begin 1 October 2023, at which point every employer with 15 or more employees that employs at least one individual in Maryland, every employee (through payroll deductions), and every participating self-employed individual will be required to contribute to the Fund.
An employer may satisfy the Act’s requirements by providing all eligible employees with a private employer plan with benefits and / or insurance that meets or exceeds the rights, protections and benefits provided by the Act. An employer must file their private employer plan with the Maryland Department of Labor (the “Department”) in order to receive the exemption.
The Leave Entitlement
A “covered employee” is an employee who has worked at least 680 hours over the 12-month period immediately preceding the date on which leave is to begin. A “covered individual” means a covered employee or a self-employed individual who elects to participate in the program.
Beginning 1 January 2025, covered individuals may take paid leave under the Act:
- To care for a child during the first year after the child’s birth or after the placement of the child through foster care, kinship care, or adoption;
- To care for a family member with a serious health condition;
- Because the covered individual has a serious health condition that results in the individual being unable to perform the functions of his / her position;
- To care for a service member who is the covered individual’s next of kin; and
- Because the covered individual has a “qualifying exigency” arising out of the deployment of a service member who is a family member of the covered individual.
“Family member” is broadly defined to include a covered individual’s:
- Child;
- Parent or legal guardian;
- Spouse;
- Grandparent;
- Grandchild; and
- Sibling.
All of the above relationships include biological, adopted, foster and step-relations.
Paid leave benefits
Aside from two enumerated exceptions, covered individuals will be entitled to no more than 12 weeks of paid leave benefits in an application year.
Employees may take paid leave on an intermittent basis in increments of at least 4 hours, if:
- They make a reasonable effort to schedule the intermittent leave in a manner that does not unduly disrupt the employer’s operations; and
- Provide the employer with reasonable and practicable prior notice of the reason for why they need intermittent leave.
Employee Notice Requirements
If the need to use leave is foreseeable, an employer may require employees to provide a 30 days’ written notice of a covered employee’s intention to take leave under the Act.
If an employee’s leave is not foreseeable, the employee must provide notice to the employer as soon as practicable and generally comply with the employer’s requirements for requesting or reporting other leave, so long as those requirements do not interfere with the employee’s ability to take leave under the Act.
Employers must provide written notice to every employee of their rights under the Act at the time of hiring and on an annual basis.
In addition, employers must notify employees of their eligibility to take leave within five business days of the employee’s request for leave under the Act or when an employer knows that an employee’s requested leave may be eligible for benefits under the Act.
Prohibited Acts / Employee Protections
An employer may terminate the employment of an employee on leave only for “cause” (which the Act does not define).
Further, an employer can deny restoration of an employee’s position after they take covered leave if:
- The denial is necessary to prevent substantial and grievous economic injury to the operations of the employer;
- The employer notifies the covered individual of its intent to deny restoration of the position at the time the employer determines the economic injury would occur; and
- If the leave has already begun, the employee elects not to return to employment after receiving notice of the employer’s intention to deny restoration.
Finally, employers may not take adverse action or retaliate against an employee for exercising his or her rights under the Act or for making a complaint or participating in a proceeding under the Act.
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