On April 9, the Maryland legislature enacted the Time to Care Act of 2022 over Governor Larry Hogan’s veto. The Act will provide job-protected, paid family and medical leave for workers across the state, making Maryland the tenth state plus the District of Columbia to do so. The passage of the bill is a victory for employees in the state and workers’ rights activists across the country, who hope that if enough states pass paid family and medical leave, the federal government may follow suit.
Under the Act, by June 1, 2023, the Maryland Department of Labor must issue regulations implementing its provisions. Once implemented, the Act will establish a paid leave fund, to which most employers and all employees will be required to contribute based on wages paid and received. The fund will help provide partial wage replacement for employees who need leave to care for certain family members, for their own illness or other health condition, or for a qualifying event caused by a family member’s military deployment. This differs from the federal Family Medical and Leave Act (FMLA) in various ways, including coverage involving deployment (which the FMLA does not cover), and payments during leave (leave under the FMLA is unpaid). Importantly, the Act does not provide an employee with full pay coverage while they are on leave; instead, leave under the Act will replace up to 90% of an employee’s weekly earnings, with a weekly cap of $1000.
All non-federal employers – private sector and state and local government – who employ at least one person in Maryland will be required to comply with the Act. Self-employed individuals will also be able to opt into the paid leave fund. Employers with at least 15 employees, all employees who work for employers other than themselves, and all self-employed individuals who opt into the program will be required to pay into the insurance fund to cover the pay replacement benefit.
Qualifying circumstances under the Act are:
1) a serious health condition that prevents the employee from being able to perform the functions of their position;
2) care for a family member’s serious health condition;
3) care for a child in the first year of the child’s life (or the first year after placement of the child with a family through foster care or adoption);
4) care for a service member who is the employee’s next of kin; and
5) a qualifying event arising out of a family member’s deployment.
To be eligible for leave under the Act, employees will have had to have worked at least 680 hours (about 17 40-hour weeks) in the year immediately preceding the date on which they wish to begin taking leave; those who qualify will be able to take leave on either a continuous or intermittent basis. Generally, individuals will be limited to taking a maximum of twelve weeks of leave under the Act each year; however, those who qualify for both parental leave and leave due to their own serious condition in the same year may take up to 24 weeks.
The definition of “family member” under the Act is broad and includes:
- a covered employee’s biological child, foster child, stepchild, child over whom the employee has legal or physical custody or guardianship, or any other child for whom the employee stands in the place of a parent;
- the employee’s spouse;
- a biological, adoptive, foster, or step parent of the employee or the employee’s spouse;
- the employee’s legal guardian or the ward of the employee or the employee’s spouse;
- an individual who stood in place of a parent for the employee or their spouse when the employee or spouse was a minor;
- the employee’s biological, adopted, foster or step grandparent;
- the employee’s biological, adopted, foster, or step grandchild; and
- the employee’s biological, adopted, foster, or step sibling.
However, as with the FMLA, there is a notable omission from the Act’s definition of a family member: while it includes “spouse,” it does not include “partner” or “domestic partner.” Though “spouse” under the Act undoubtedly includes spouses in same-sex marriages (as it does under the FMLA), those who are in long-term relationships and who have even lived together for years but remain unmarried likely will not meet the definition of a family member under the Act.
Still, the Time to Care Act is a significant step forward for workers in Maryland, who will no longer have to rely on unpaid leave through the FMLA when they need time off for self-care or care of a family member. And as ten states and the District of Columbia now provide some form of paid leave, employees and activists around the country can hold out hope that eventually, the federal government will pass paid family leave and remove the United States from the shrinking list of countries that do not provide this essential right.
Katherine Krems is an attorney at KCNF. If you or someone you know is having trouble with family or medical leave, the attorneys at KCNF are available to assist you.