Paid Medical Leave in Maryland is coming. Is your workplace ready? Throughout the remainder of the year, keep tuned to this website for Tony Herman’s insights into the decisions companies will have to make, day one concerns, and issues on the horizon, as Maryland employers (and employees) go into this brave new world.

When a potential new client reaches out to me with an employment law concern, the first question I always ask them is how many employees they have. Employee count really matters in the employment world. There are certain “magic numbers” that every employment lawyer can rattle off in their sleep – 15 (for coverage under Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act, and the Maryland Fair Employment Practices Act), 20 (for coverage under the Age Discrimination in Employment Act), and 50 (for coverage under the Affordable Care Act and Family and Medical Leave Act) are the three big ones.

Why do all of these laws have minimum employee thresholds? In part because they impose obligations upon employers that are just not feasible for smaller employers. For an employer with fewer than 15 employees, the space between a “reasonable accommodation” and an “undue hardship” is often microscopic. The FMLA has a 50-employee minimum because of the difficulties smaller employers would face in keeping open a position for 12 weeks.

And yet here we are with FAMLI. FAMLI, Maryland’s new paid family and medical leave program, applies to all Maryland employers. The only distinction in employer size is at 15 employees – but even that does not affect the amount of leave an employee gets. (Rather, if an employer has fewer than 15 employees, the employer is not required to pay the 0.45% payroll contribution that would otherwise be required.) The same 12-week obligation applies whether you employ three Maryland employees or 3,000.

So, what is your average small employer to do about the obligations of FAMLI? How does a five-employee medical office withstand one of its providers suddenly requiring 12 weeks off? There is no easy answer. Small employers are never going to completely eliminate the operational burden of an extended absence. There are some practical steps companies may want to take now, though, which could help mitigate any future absences:

• Stop treating every employee as irreplaceable. A former mentor of mine once put it bluntly when a client was up in arms about a valuable employee needing time off: “And what would happen if they were hit by a bus tomorrow?” Plan as if these absences will occur. Begin documenting each position’s essential processes and cross-training if feasible.
• Establish relationships with temporary staffing companies. “Temp work” is going to skyrocket with the advent of FAMLI. With 12 weeks of job-protected leave soon being required, there is going to be more demand than ever for short-term fill-ins. Begin a relationship with a staffing firm now if you haven’t already done so.
• Document and prepare policies accordingly. Under FAMLI, employers may require 30 days’ notice when leave is foreseeable and notice as soon as practicable when it is not. For intermittent leave, employees must make reasonable efforts to schedule their absences in a way that does not create a significant burden, and the parties should agree upon a schedule. Use these obligations to your advantage and consult with an employment lawyer on a written leave-request procedure.

FAMLI is fundamentally going to change employment in Maryland, and it makes no sense to pretend that it won’t. However, with the help of an RKW employment attorney, we can assist you in making sure your company is as fully prepared as possible to take on the challenge.