<span style="font-size: 85%;">We get it – lawyers are expensive. This recurring series seeks to help employers and employees in deciding whether calling your lawyer in a certain situation is unnecessary, is dependent on your risk tolerance, or is an absolute must.</span>

<hr style="width:58%;text-align:center;margin-left:0; margin-bottom: 20px;">

Most employers offer some form of paid leave. The cost to employers for doing so is far outweighed by the benefits – a healthier and more productive workforce (besides being necessary for recruiting and retention).

The possibilities of what kind of leave to provide, though, are seemingly endless. Should you separate vacation leave and sick leave? What about personal days? Work anniversaries or birthdays? All federal holidays? Floating holidays? Jury duty leave? Bereavement leave? Should you lump it all together into a PTO policy? Is the leave given at the beginning of the year or upon an employee’s anniversary date? Is it provided all at once or is it accrued?

Maryland law is actually quite scant on the issue of paid leave. There are three legal issues I look for in reviewing a leave policy:

<ol style="width:48%; margin-bottom: 0px !important;"><li>Does the policy comply with the Maryland Healthy Working Families Act (MHWFA)? The MHWFA requires employers to provide 1 hour of leave for every 30 hours worked, up to 40 hours of leave in a year, to employees for “sick and safe” reasons. If an employer has 15+ employees, the leave must be paid; for smaller employers it can be unpaid. If the employer allows employees to accrue leave, some carryover must be allowed; under a frontloaded policy, carryover is not required. The law is (overly) complicated with regard to notice/verification provisions, but those are the biggest points.</li><li>Does the policy comply with the Maryland Flexible Leave Act (MFLA)? The MFLA requires Maryland employers with 15+ employees to allow employees to use any form of paid leave available to them in case of an immediate family member’s illness or death.</li></ol><ol start="3"><li>Does the policy limit payout upon termination? In Maryland, leave benefits are considered wages. It is presumed that an employer must pay out any accrued but unused leave upon an employee’s termination; the only way for an employer to beat that presumption is with a written policy expressly limiting that payout.</li></ol>

(I note that in a few years employers will have to contend with paid leave provided through Maryland’s FAMLI program – but that’s an issue for another time).

Other than that, the questions usually relate to the industry in which you work and administration issues. Accrued systems work well, for example, if an employer has concerns about new hires taking extended time off early in their tenure. On the other hand, accrued systems are administratively more burdensome and can cause issues with employees needing advances of leave. Frontloaded systems are easier to administer and encourage planned vacations (of which the employer may have more notice). However, they also can lead to payout liabilities if an employee scrambles to use all of their leave and departs.

Call an RKW employment attorney to discuss these options in more detail and decide what’s right for your business.