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Maine’s New Paid Leave Law: Employer Confusion 

by Richard G. Moon, Elizabeth T. Johnston

Published: June, 2019

Submission: September, 2019

 



On May 28, 2019, Governor Mills signed into law the nation’s first ever paid leave law requiring leave for any reason. The statute itself is uniquely brief, giving the impression that it is straightforward, but there are a host of important issues that the statute does not address. Below, we have identified what we know—and what we do not know—about the Maine’s new paid leave law thus far.


Here is what we know:


  • The law applies to employers that, in the usual and regular course of business, have more than 10 (i.e., 11 or more) employees employed for more than 120 days per year.
  • An employee will begin accruing paid leave at the time they start working. The employee accrues 1 hour of paid time off for every 40 hours worked, up to a maximum of 40 hours in a year, and may be required by an employer to wait 120 days before using the leave.
  • The leave must be paid at the base rate that the employee had immediately prior to taking leave.
  • The employee is entitled to the same benefits as the employer provides to employees out on other types of paid leave.
  • The employee must give “reasonable notice” to the employer of the need for leave absent an emergency, illness, or other sudden necessity, and the leave must be scheduled to prevent undue hardship on the employer.
  • The law takes effect on January 1, 2021.

Additionally, we know that the law prohibits any other political subdivision from enacting a law covering the same subject matter; that only the Maine DOL may enforce provisions of the Act; that the Maine DOL is tasked with creating regulations to effectuate the Act; and that the law does not apply to employees covered by collective bargaining agreements.


However, because of the law’s brevity and wording, there is still much we do not know about how the law will operate:


  • Although the law provides that the employee’s leave cannot cause undue hardship as determined by the employer, how will that be interpreted?
  • What amount of notice is “reasonable” for an employee to provide? What constitutes an emergency or “sudden necessity,” and who decides?
  • How will your current vacation or other paid time off policies be affected by the new law?
  • Can an employer establish a minimum increment of paid leave that an employee must use at one time?
  • Is it a use it or lose it law, or can some be rolled over to the next year?
  • What kind of documentation is the employer entitled to, if any?
  • What happens to accrued paid leave when the employee separates from employment?
  • Are contract employees who work when they want covered?
  • Can an employer reduce other paid time off that it already grants, or is this a “new” week of additional time off.

The bottom line is that despite what appears to be a straightforward bill, we are left with a series of uncertainties until the Department of Labor enacts regulations to we hope clarify the details of this paid leave law. Until then, employers with 11 or more employees should review their current policies and consider how those policies might interact with or compare to the requirements of the new paid leave law. In addition, businesses should stay alert for DOL updates on regulations governing paid leave.


If you wish to discuss your company’s specific situation for some early planning, you may contact any attorney in the Verrill Dana Employment Group, and we will be glad to work through the most likely impact of the law on your operations.


 



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