Flexible Leave Act: Interpretation could give leave leeway

State officials are working to clarify the Flexible Leave Act for businesses before it takes effect this fall, but many remain concerned about uncertainty in the law signed last month by Gov. Martin O'Malley.

The law requires employers with more than 15 workers to make any accrued time off immediately available to employees who have a sick family member. It does not require employers to offer leave if they do not already.

According to a letter from the Office of the Attorney General, employees will be eligible to use any leave they have saved up as soon as the law takes effect on Oct. 1.

The letter, written by Assistant Attorney General Kathryn M. Rowe, was a response to Del. Ronald A. George, R-Anne Arundel.

"It is my view that [the law] applies to any leave taken after the effective date of the bill, regardless of when the leave accrued," Rowe wrote in the letter dated May 28. She noted, however, that the law will not apply to leave taken before October.

According to the letter, the law also does not prevent employees from having to comply with their employer's policy or collective bargaining agreement. It does specifically bar employers from denying leave to a worker with a sick family member, though.

Rowe's interpretation could give businesses more leeway in determining how they will comply with the law.

For instance, if an employer's policy calls for employees to provide a certain amount of notice before they take days off, the letter says "the employee must comply with the terms of the ... policy in using the leave."

Proponents of the law call it a modest but helpful protection for workers, but it has also elicited heavy opposition from business groups. Groups including the Maryland Chamber of Commerce, the National Federation of Independent Business and the Maryland Retailers Association asked O'Malley to veto it. O'Malley approved the act at his final bill-signing session of the year.

Opponents including the NFIB, in urging O'Malley to veto the bill, argued that even if he agreed with the premise of the bill, it was still too vaguely written to be effective.

"The letter doesn't tell us anything new, other than that there is a tremendous amount of ambiguity in the language of the bill that was passed," said Ellen Valentino, Maryland director for the NFIB. She said it remains difficult to interpret some parts of the law -- including the relationship between the new requirements and existing policies.

George said he asked for the attorney general's letter because he thought the law was unclear in several respects. He said he hopes to get more clarification about what the bill will do from the attorney general as the year goes on.

He said the law may raise constitutional issues and could be challenged in court because it changes existing arrangements between employers and their workers. He said he may try to address some of the questions during next year's legislative session, but noted that the law will have already taken effect by then.

"Someone, someplace, some employer is going to challenge this before next year," George said.

Sen. Robert J. Garagiola, D-Montgomery, who sponsored a version of the act, could not be reached for comment Friday. He has said previously that many opponents misunderstood the bill, and that he does not expect it to cause problems.

Copyright 2008 Dolan Media Newswires
Provided by ProQuest Information and Learning Company. All rights Reserved.