On April 9, 2022, the Maryland legislature voted to override Governor Lawrence J. Hogan’s veto of the Time to Care Act of 2022 (SB 275/HB8), passing it by a 30-16 vote in the Senate and by a 94-44 vote in the House. Maryland is the eleventh state¹ (in addition to the District of Columbia) to adopt a statewide family and medical leave program (the “Program”).

Leave Entitlements

The purpose of the Program is to provide temporary paid benefits to a covered individual who is taking leave from employment.  The Program mirrors the federal Family and Medical Leave Act (FMLA), in part, and expressly states that the secretary of labor shall adopt regulations and procedures consistent with the FMLA and relevant state law. Benefits will include taking leave for the following reasons:

• To care for a child during the first year after the child’s birth or after the placement of the child through foster car, kinship, or adoption;
• To care for a family member with a serious health condition;
• The covered individual has a serious health condition;
• To care for a service member who is the covered individual’s next of kin; or
• The covered individual has a qualifying exigency arising out of deployment of a service member who is a family member of the covered individual.

Eligibility

Beginning October 1, 2023, every employee working in Maryland, self-employed individuals, and employers with 15 more employees participating in the Program must begin contributing to the Program fund (the “Fund”). A covered employee is one who has worked at least 680 hours over a 12-month period immediately preceding the date on which leave is to begin.

The secretary of labor will set the respective rates of contribution for employers with 15 or more employees by June 1, 2023.  Funding requirements will be subject to change every two years based on recommendations by the secretary of labor, in consultation with state agencies and relevant stakeholders. Employers that have 14 employees or fewer, however, are not required to contribute to the Fund. Employees of those smaller employers, however, will still be required to pay their required contributions.

Interactions with Other Laws and Employer Policies

If paid leave taken under the law also qualifies as protected leave under the FMLA, the paid leave taken will run concurrently with, and not in addition to, such protected leave.

Protected Acts

If a covered individual is receiving benefits or is taking leave, an employer must continue any employment health benefits in the same manner as required by the federal FMLA for the time that the covered individual is absent from work or receiving benefits. Employers generally must restore the individual to an equivalent position of employment. The new law offers individual leave-takers with job protection, and generally, an employer may only terminate an employee on leave “for cause,” and may only deny restoration of a covered individual’s position in certain circumstances.

Recommendations

While the law represents a major change concerning paid leave for Maryland employers, its substantive provisions do not take effect until October 1, 2023, providing employers time to prepare.  The anticipated interpretive regulations should provide businesses with some clarification and guidance prior to the requirements taking effect.

Employers should take advantage of this lead time to identify covered employees, prepare their payroll systems to include any additional payroll tax, and to consult experienced Maryland employment counsel to review current paid time off, leaves of absence and family and medical leave policies to account for these new requirements.

Littler will continue to monitor the effects of this new law and the status of regulations.