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Parental Leave Act Strengthening Maryland Employee Leave Protection to Take Effect October 1

Overshadowed by the Maryland legislature’s decision to raise the state’s minimum wage to $8.00 per hour effective January 1, 2015 (with scaled increases in future years) is a separate, but significant, piece of legislation known as the Parental Leave Act (the “PLA”) that  also recently was passed by the Maryland legislature.

The PLA, which will take effect October 1, 2014, applies to Maryland employers with 15-49 employees. It generally requires them to provide unpaid parental leave benefits to eligible employees except in unusual circumstances. Specifically, the Act requires employers to provide eligible employees with a total of six weeks of unpaid leave during any 12 month period for either of the following reasons: the birth of a child of the employee or the placement of a child with the employee for adoption or foster care. In order to be eligible under the PLA, an employee must have been employed with that employer for a period of 1,250 hours in the previous 12 months. In order to trigger protection under the statute, an employee must provide her/his employer with advance written notice of the employee’s intention to take parental leave at least 30 days before commencing parental leave, except in situations involving a premature birth, unexpected adoption, or unexpected foster placement.

The statute provides strong job protection to eligible employees taking parental leave. Specifically, an employer may fire an employee only  for “cause” when the employee is taking parental leave. An employer may deny parental leave only if the denial is necessary to prevent “substantial and grievous economic injury to the operations of the employer,” and the employer notifies the employee of the denial before the employee begins taking the leave. Furthermore, the PLA contains strong protections to employees who return from parental leave. The statute requires employers to restore an employee to the same or an equivalent position, and they may deny restoration only to prevent “substantial and grievous injury” to the operations of the employer. Employers must notify the employee of their intent to deny restoration of the employee’s position of employment at the time that the employer determines that economic injury would occur after the employer provides notice of its intention to deny restoration.

Employers are required to maintain existing coverage under a group health plan during any period when an eligible employee takes parental leave. Employers, under certain circumstances, may recover the premium if an employee does not return to work. Employers may require eligible employees to substitute paid vacation leave for any part or all of a period of parental leave. Employees who are compensated on a commission basis must be paid any commission that becomes due as a result of the work performed by the employee before the employee took parental leave.

The law prohibits an employer from discriminating against or discharging an employee because the employee (1) requests to take parental leave; (2) makes a complaint to the employer; (3) brings an action under the statute; or (4) testifies or will testify in an action or proceeding under the statute. The PLA contains a private right of action for employees who believe that their rights under the legislation have been violated. Individuals may seek to recover damages equal to any amount of any wages, salary, employment benefits or other compensation denied or lost. In addition, if a court determines that an employee has successfully demonstrated that her/his rights have been violated under the statute, the court shall allow reasonable attorney’s fees and other costs to be awarded to the employee. Unlike other anti-discrimination laws, the PLA specifically provides that a supervisory employee of an employer may not be personally liable for a violation of the new statute.

The PLA is the latest in a series of enactments by the Maryland legislature designed to strengthen the leave protections of employees. Employers should take the following steps to comply with the statute:

  1. Prepare an appropriate Parental Leave Policy;
  2. Train managers on the requirements of the statute; and
  3. Make sure that appropriate steps are taken to honor legitimate requests by eligible employees for parental leave under the statute.

 

Marc Engel is an employment attorney at Lerch, Early & Brewer in Bethesda, Maryland, who co-chairs the firm’s Employment & Labor group. He brings nearly 25 years of wide-ranging civil litigation and counseling experience to his practice, and has represented clients in state and federal courts and before administrative agencies and various arbitration panels. For more information about Maryland's Parental Leave Act, contact Marc at (301) 657-0184 or mrengel@lerchearly.com.

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