Governor Martin O'Malley has signed the Maryland "Flexible Leave Act" into law. Effective October 1, 2008, Maryland businesses employing 15 or more employees must allow their employees to use any form of accrued leave with pay to care for an immediate family member who is ill.

The law is limited to employers that provide leave with pay to their employees. Employers who do not provide paid leave as an employee benefit are not required to implement paid leave programs to comply with the law.

If an employer with 15 or more employees provides paid leave, it must permit its employees to use any type of accrued leave they have available to take time off to care for any member of their immediate family (including a child, parent or spouse) who is sick. To the extent that an employee has more than one form of paid leave available, the employee has the right to elect the type and amount of leave with pay to be used.

The Flexible Leave Act prohibits employers from discriminating against any employee who exercises his or her rights under the Act, or who complains about any violations of the Act or participates in an investigation or legal action arising out of such complaints. The Act does not affect any leave granted under the federal Family and Medical Leave Act.

A number of business groups have criticized the legislation, calling it vague and ambiguous. According to the June 8, 2008, Maryland edition of The Daily Record, Maryland Delegate Ronald George (a Republican representing Anne Arundel County) already has contacted the Maryland Attorney General's Office to seek clarification about certain aspects of the law. According to The Daily Record, the Attorney General's Office issued a letter in response to Delegate George's inquiry.

In the Attorney General's Office letter (authored by Assistant Attorney General Kathryn M. Rowe and quoted in The Daily Record), the Office takes the position that the law applies to any leave with pay taken after the effective date (October 1, 2008), regardless of when the employee actually accrued the paid leave. The law does not apply to leave taken prior to the Act's effective date.

According to Attorney General's Office, the law does not prevent employers from requiring their employees to comply with any applicable leave policies or collective bargaining agreements (such as those establishing mandatory advance notice requirements), except where the applicable leave policy or collective bargaining agreement conflicts with the Act. On the other hand, the letter confirms that the law prohibits employers from refusing leave to an employee with an ill family member.

Delegate George sought guidance from the Maryland Attorney General's Office because he thought the law was unclear in a number of ways. Delegate George hopes to obtain further clarification about the Act as its effective date draws closer.

In light of the Flexible Leave Act, Maryland employers should review their paid leave policies. In all likelihood, employer paid leave policies in Maryland will need to be updated to reflect that any form of accrued leave with pay can be taken for purposes of caring for an immediate family member who has fallen ill. In addition to updating leave policies, human resources personnel and managers supervising employees should be educated about the requirements imposed on Maryland employers.