TOP TIP: What to Expect from Maryland’s Paid Family and Medical Leave Program – The Sequel
In last month’s Top Tip, we discussed two regulatory outlines (Equivalent Private Insurance Plans and Contributions) and a discussion document (Claims) that had thus far been issued by the Maryland Department of Labor’s FAMLI Division as part of its process to develop regulations for the forthcoming paid family and medical leave program. The FAMLI Division has now released its regulatory outline for Claims, which provides employers with a clearer indication than the discussion document of what to expect when the actual regulations are finally released for comment sometime in the coming months.
As we previously noted, Maryland has enacted a paid family and medical leave insurance (FAMLI) program that, starting in 2026, will provide most Maryland employees with 12 weeks of paid family and medical leave, with the possibility of an additional 12 weeks of paid parental leave. The MDOL was directed to issue regulations to interpret and implement the Act by January 1, 2024. The MDOL’s FAMLI Division has begun the regulatory process by holding a series of public sessions on specific topics. They released a discussion document prior to each, and are following up with regulatory outlines on the topic that provide some indication of what might be included in the regulations. The FAMLI Division will then issue a full set of proposed regulations later this fall for public comment, before final regulations are released.
Last month, we highlighted some of the more significant topic areas identified in the Claims discussion document. Now, the FAMLI Division’s regulatory outline for Claims provides more insight as to how they likely intend to implement the law, as follows:
- With regard to the reasons for which FAMLI leave may be taken, the document adopts essentially the same definitions as under the federal Family and Medical Leave Act. That is helpful for employers who are subject to FMLA (those with 50+ employees).
- The definition of “serious health condition” is more expansive, however, than under the FMLA, including conditions that pose an imminent danger of death and organ donations.
- “Covered employee” is defined to include previous employees who met the 680 hours worked requirement in Maryland.
- As to “domestic partners,” the definition proposed is less stringent than that already contained in the Maryland Code, and, unlike that existing law, it does not require proof of the attested statements.
- If the employee can show “good cause,” applications may be approved for those beyond the normal 60-day application period. The proposed definition of “good cause” includes some degree of incapacitation, natural disaster, power outage, or prolonged departmental system outage, but (this is new) also a claimant’s lack of knowledge about their right to FAMLI benefits.
- “Kinship care” includes both formal and informal arrangements, which are already defined in other parts of the Maryland Code.
- The information required to be provided in support of an application for benefits is largely similar to that required under the FMLA, including documentation from a health care provider where appropriate.
- There is a very vague statement that requires claimants to make attestations to “knowledge of certain information that will impact their applications.” While the FAMLI Division states that a list of attestations will be provided on its website, there is no indication at all of what this will encompass.
- Like the FMLA, FAMLI leave for adoption may be taken prior to placement for things like court appearances, legal appointments, and travel, among other things.
- As to intermittent leave, claimants will be required to submit requests every two weeks. It must be taken in increments of no less than 4 hours, unless the employee’s scheduled shift is fewer than 4 hours. Claimants will not receive benefits for leave that exceeds the expected duration and frequency set forth in the medical certification, unless they submit an updated certification.
- Employers must provide notice of FAMLI rights upon hire, annually, and whenever it knows that a leave request might be eligible for FAMLI. But like FMLA, the employee need not specifically refer to FAMLI; it is up to the employer to ask for more information in order to determine if FAMLI applies.
- The employer’s notice to the employees must contain an extensive list of information (the Division will create templates that employers may use):
- An explanation of FAMLI, including who is covered, qualifying circumstances, where to apply, job protection and anti-retaliation language, and the availability of intermittent leave.
- The employee’s responsibility to provide 30 days’ notice, where applicable (but see below).
- Coordination of benefits, if the employer offers alternative FAMLI purpose leave, such as paid parental leave or short term disability leave (but not statutory sick leave, vacation or PTO).
- Anything else the Division might require.
- Employee are required to provide 30 days’ notice to the employer for foreseeable leave. However, of serious concern, the outline contains no notice requirement for unforeseeable leave (unlike FMLA, which at least requires as much notice as practicable).
- If an employee requires intermittent leave, they are supposed to make a reasonable effort to schedule such leave to not unduly disrupt business operations. They should also provide reasonable and practicable prior notice of the reason for the intermittent leave, although apparently not as to the leave itself, which is not helpful for employers.
- If the employee fails to provide such notice of intermittent leave, the employer may discipline the employee, but must notify the Division of the failure to provide notice. But since the notice provision only applies to the overall need for intermittent leave, and not each incident of leave, it is unclear how this would apply.
- In addition, if the employee’s use of intermittent leave is inconsistent with the approved leave, the employer may request additional information related to the use of FAMLI leave. But there is no provision that allows employers to request additional information with regard to the use of FAMLI leave in a block.
- Employers will be notified by the FAMLI Division of claim details “subject to confidentiality restrictions” electronically within 5 days of a completed application. Employers will then have only 3 business days to report fraud before a determination of benefits is made. This is not much time and, moreover, if the “confidentiality restrictions” result in minimal information, it may not be possible for the employer to determine if there is fraud. Another concern is that there is no other provision that allows employers to report fraud outside of this extremely limited time period.
- Although FAMLI and FMLA will run concurrently, any FMLA leave taken before January 1, 2026 will not count towards available FAMLI leave.
- Employers may require employees to use alternative FAMLI purpose leave (AFPL) in coordination with FAMLI. AFPL must be specifically for a FAMLI-covered reason, paid, not accrued, not subject to repayment if the employee separates from employment, not available for general purposes and not subject to exhaustion of another type of paid leave first.
- If employees take AFPL instead of FAMLI leave, their FAMLI entitlement will be reduced accordingly. If they take FAMLI, the AFPL may be used as a supplement to bridge the gap between FAMLI benefits and full pay – and the AFPL will be reduced by the full FAMLI time taken, even if used only for partial wage replacement.
- Neither employers nor employees can require the substitution of general purpose leave (vacation or PTO) for FAMLI. They may agree – in writing – to have such vacation or PTO supplement FAMLI benefits, but the general purpose leave is reduced only by the actual amount of the supplemental benefit. Employees may choose to use sick leave prior to receiving FAMLI benefits, however. Of concern, this can extend the time out by another full week (beyond the 12/24 weeks of FAMLI), since Maryland requires employers to provide up to 40 hours a year of sick leave.
- Employees receiving unemployment benefits or workers’ compensation wage replacement benefits are not eligible for FAMLI.
As should be clear from this summary, there are a number of problematic provisions suggested in the draft regulatory outline. Employers should feel free to express their concerns to the FAMLI Division at this time, but also when the Division releases the full proposed regulations.