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Leave Laws: D.C., Maryland, and Virginia

The federal Family and Medical Leave Act (“FMLA”) requires certain employers to provide unpaid leave to employees who have serious medical conditions or who must care for family members with such conditions, or care for newborns, newly adopted children, or recently placed foster children.  See 29 U.S.C. § 2601, et seq.  State laws, however, also control employers’ obligations to provide leave.  For example, some states have enacted mini-FMLAs which require more leave to be granted than the amount mandated by the analogous federal law.

That situation is especially problematic for companies located in the Washington D.C. Metropolitan Area, where Maryland, Virginia, and the District of Columbia laws may all come into play because their employees may spend time working in each jurisdiction.  For instance, an employee may be assigned to work from a facility located in Montgomery County, but may also perform work in Northern Virginia and D.C.  As a consequence, employers must determine which law applies to specific employees and what types of leave must be provided to them.

Family and Medical Leave

Maryland

Maryland has not enacted a mini-FMLA, but the Maryland Flexible Leave Act (“MFLA”) mandates that employers that employ at least 15 workers and provide paid leave must allow employees to use that leave to care for a spouse, parent, or child suffering from an illness.  See Md. Code Ann., Lab. & Employment §3-802 (2008).  Thus, the MFLA, unlike the FMLA, applies to companies with fewer than 50 employees and uses the term “illness,” not “serious health condition,” which may also encompass minor health conditions.  In addition, the MFLA does not interfere with protections under the FMLA, meaning that an employee whose relative’s illness qualifies under both statutes may choose whether to use accrued paid time off as MFLA leave, or take 12 weeks of unpaid leave under the FMLA.  Id.  The employer may not dictate the type of leave that the employee selects when both the MFLA and FMLA apply.

Virginia

In Virginia, employees are entitled only to FMLA leave because that state has not passed a mini-FMLA or other law comparable to the FMLA. 

District of Columbia

The District has passed a mini-FMLA (“DCFMLA”) that applies to companies with at least 20 employees.  See D.C. Code § 32-516(2).  Specifically, the DCFMLA requires employers to provide employees who have worked at least 1,000 hours during the preceding 12 months a total of 16—not merely 12—weeks of unpaid family and medical leave to care for a family member.  Moreover, the DCFMLA defines “family member” to include “[any] person with whom the employee shares or has shared, within the last year, a mutual residence and with whom the employee maintains a committed relationship.”   See D.C. Code § 32-501(4).  That definition is broader than the FMLA, which includes only an employee’s spouse, children and parents as members of any employee’s family.  See 29 U.S.C. § 2612(a).  

Due to the expansive language, co-habitating partners of the same or opposite gender are included in the DCFMLA definition of “family member.”  Moreover, unlike the FMLA, an employer may not require employees to use paid leave instead of unpaid leave while on DCFMLA leave, even though leave under both laws must run concurrently, rather than consecutively.  See D.C. Code § 32-503.

Military Deployment of Family Members

Maryland

Beginning October 1, 2013, private and public sector employers with at least 50 employees must grant unpaid leave to employees on the day when a spouse, parent, stepparent, child, stepchild, or sibling is leaving for or returning from active military duty outside the United States.  To qualify, a full-time or part-time employee must have worked for the employer for the last 12 months and at least 1,250 hours during the preceding 12 months.  Employers may not require employees to use compensatory, sick, or vacation leave when taking this leave, but may require employees to provide proof that it is being taken for the purposes covered by the law.

Virginia and District of Columbia

Neither Virginia nor the District of Columbia requires employers to provide leave for the deployment of military family members.

Jury Duty Leave

Maryland

Maryland does not require employers to provide paid jury duty leave for employees.

Virginia

Virginia has not enacted a jury duty leave statute, but employers may not require employees to use accrued paid leave while serving on a jury.  See Va. Code Ann. § 18.2-465.1

District of Columbia

For up to five days of jury service, the District requires employers to pay employees the difference between the employee’s regular wage rate and the amount paid by the court to jurors.  See D.C. Code § 15-718.

Sick Leave

Maryland and Virginia

Neither Maryland nor Virginia requires employers to provide paid or unpaid sick leave to employees.

District of Columbia

The Accrued Sick and Safe Leave Act requires all employers to provide paid leave to employees who have been employed continuously for at least one year and have worked at least 1,000 hours during the preceding 12 months.  The amount of leave depends on the size of the employer’s workforce:

  1. over 100 employees—one hour of leave for every 37 hours worked, not to exceed five days of leave per year;
  2. 25 to 99 employees—one hour for every 43 hours worked, subject to the same cap; and
  3. fewer than 25 employees—one hour for every 87 hours worked, not to exceed three days per year. 

See D.C. Code § 32-131.02.

Employees may use the leave to care for the health of themselves or their spouse, domestic partner, or any other family member. Id.  Employers must permit their employees to carry over unused sick leave from year to year and may not adopt a “use it or lose it” policy.  See D.C. Code §32-131.02(c).

Parental Leave

Maryland and Virginia

These states have not enacted parental leave laws.

District of Columbia

In the District, employers must grant leave to parents to attend events sponsored by a school or a parent-teachers association.  The Act broadly defines “parent” to include biological parents and anyone acting as a child’s guardian, aunt, or uncle, and a person married to a parent.  See D.C. Code § 32-1201.  An employee-parent is entitled to 24 hours of unpaid leave during any 12 month period to attend qualifying events.  D.C. Code § 32-1202.

Vacation

Finally, neither Maryland, Virginia, nor the District of Columbia requires employers to provide paid or unpaid vacation to employees.  Accordingly, the entitlement to such leave is controlled by contract.  See Jones v. Dist. Parking Mgmt. Co., 268 A.2d 860, 862 (D.C. 1970); Unused Vacation at Termination-Is It Payable?, Department of Labor, Licensing, and Regulation (Feb. 18, 2010) http://www.dllr.state.md.us/labor/wagepay/wpunusedvacpay.shtml; Labor and Employment Law, Virginia Department of Labor and Industry, http://www.doli.virginia.gov/laborlaw/laborlaw.html.

As a general rule, “an employee who accrues and does not take vacation … is entitled to monetary compensation for that leave upon discharge from employment absent an agreement to the contrary.”  See Nat’l Rifle Ass’n v. Ailes, 428 A.2d 816, 820 (D.C. 1981).  Maryland and the District of Columbia follow this rule, but Virginia is silent as to whether an employee must be compensated for unused vacation days if that issue has not been addressed in a contract.

None of these jurisdictions, however, prohibit employers from unilaterally implementing personnel policies that impose conditions on earning vacation, use-or-lose leave restrictions, limitations on carrying over leave, or forfeiture of all or some unused leave upon termination of employment.  Yet, employers must notify employees about those policies and should require employees to sign acknowledgements that they have received notice.  See Nat’l Rifle Ass’n v. Ailes, 428 A.2d at 821; MD Code Ann. Labor and Employment §3-505 (2013); Labor and Employment Law, The Virginia Department of Labor and Industry, http://www.doli.virginia.gov/laborlaw/laborlaw.html

For more information contact, Carolyn Mech at Bowie Jensen, LLC.

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