Guest Article

(From the August 18, 2008 issue of Deloitte's Washington Bulletin, a periodic update of legal and regulatory developments relating to Employee Benefits.)

Maryland and the District of Columbia Enact New Employee Leave Laws

Maryland and the District of Columbia are joining a growing number of states that provide enhanced leave rights to employees. The District's Accrued Sick and Safe Leave Act is comparable to New Jersey's paid leave law but broader in scope. Additionally, the New Jersey program is funded through the state's disability insurance program. Maryland's Flexible Leave Act requires employers that provide paid leave to allow employees to use such leave to care for sick family members.

Maryland's Flexible Leave Act: Employees Can Use Paid Leave for Ill Family Members

Effective October 1, 2008, any employer who is engaged in business in the State of Maryland and who employs 15 or more individuals is subject to the new law. The law impacts any of those employers who provide paid leave (i.e., sick leave, vacation time or compensatory time) under an employment policy or collective bargaining agreement. The employer must allow the employees to use the leave for ill family members (i.e., a child, spouse or parent). Further, if the employer provides more than one type of paid leave, the employee must be permitted to elect the type of leave to be used. Employers are prohibited from discharging, disciplining or discriminating against employees who exercise their rights under the new law.

DC's Sick and Safe Leave Act: Minimum Paid Leave Must Be Provided

Effective November 13, 2008, every employer in the District of Columbia (including the District government) must provide paid leave at least equal to:

The number of employees is determined by the average monthly number of full-time equivalent employees for the prior calendar year. The average monthly number is calculated by adding the total monthly full-time equivalent employees for each month and dividing by 12. Employees include independent contractors, students, healthcare workers who participate in a premium pay program, and restaurant wait staff and bartenders who work for a combination of wages and tips.

Leave accrues in accordance with the employer's established pay period, and an employee may access the leave after 90 days of service. Unused leave is carried over annually, although the employee may not use more than the maximum hours required to be provided in a year unless the employer chooses to allow it. Unused leave is not reimbursed on termination.

The paid leave may be used for: (1) the employee's illness or medical condition, (2) the employee's obtaining of medical care, (3) the illness or medical condition of, or obtaining of medical care for, the employee's family member, and (4) an absence if the employee or family member is a victim of stalking, domestic violence, or sexual abuse and the absence is related to social or legal services pertaining to the stalking, domestic violence, or sexual abuse. Family members include the employee's parent, spouse, domestic partner, brother or sister, the spouse of a brother or sister, child (including a foster child and grandchild), and a child's spouse.

An employee must request paid leave in writing at least 10 days, or as early as possible, in advance of the leave. The request must state the reason for the absence and the expected duration. If the leave is unforeseeable, an oral request can be provided prior to the start of the work shift for which leave is requested. In an emergency, the employer must be notified before the start of the next work shift or within 24 hours of the onset of the emergency, whichever occurs earlier.

The employer can require that leave for 3 or more days be supported by a reasonable certification (e.g., a signed document from a health care provider affirming the illness, police report indicating the employee was a victim of stalking, domestic violence or sexual abuse, court order, etc.) that is provided upon the employee's return to work.

Employers are required to post a notice of the new law's provisions. The Mayor is required to prescribe a model notice for this purpose. Employers who willfully violate the notice requirement are subject to a civil penalty of up to $100 per day, not to exceed $500 total.

Like the Maryland law, the District's law prohibits employers from discharging or discriminating against employees for exercising their rights under the new law. However, the District's law goes further to provide that employers who willfully violate it may be subject to a civil penalty of $500 for the first offense, $750 for the second offense, and $1,000 for any subsequent offenses.

The information in this Washington Bulletin is general in nature only and not intended to provide advice or guidance for specific situations. If you have any questions or need additional information about articles appearing in this or previous versions of Washington Bulletin, please contact: Robert Davis 202.879.3094, Elizabeth Drigotas 202.879.4985, Elizabeth Drigotas 202.879.4985, Mary Jones 202.378.5067, Stephen LaGarde 202.879-5608, Erinn Madden 202.572.7677, Bart Massey 202.220.2104, Mark Neilio 202.378.5046, Tom Pevarnik 202.879.5314, Sandra Rolitsky 202.220.2025, Tom Veal 312.946.2595, Deborah Walker 202.879.4955. Copyright 2008, Deloitte.