What are the Maine Laws regarding Sick Leave and Protected Leave?
The State of Maine doesn’t currently mandate paid sick leave for employees. However, it does have several laws that provide protected leave for employees and protect existing paid sick leave granted by employers. The purpose of this article is to provide a guide for business owners to Maine’s employment laws as they pertain to sick leave.
Maine’s Sick Leave Laws
Although there is no mandated sick leave, Maine does have a Family Sick Leave Law that oversees sick leave in Maine. The law makes provisions for employers who choose to offer sick leave to employees. As part of that law, some Maine Courts have upheld that if an employer promises sick leave, they must provide sick leave to the employee. Additionally, some courts have ruled that policies published in employee handbooks represent an implied contract and must be honored also.
Additionally, employers who have 25 or more employees and who grant sick leave, vacation time, or paid time off must allow employees to use that time to care for an immediate family member. Family members covered include the employee’s spouse, parent or child. This rule does not apply to short-term or long-term disability, catastrophic leave, or other similar types of leaves. Employers who offer more than 40 hours of paid leave in a year can restrict the leave usage for family members to 40 hours in a 12 month period.
Domestic Violence Leave
All employers, regardless of size, must allow employees to take time off if they or an immediate family member has been a victim of domestic violence, assault, sexual assault, stalking, or violence. This includes the employee, their spouse, parent, or child. Time off can be taken for the following reasons:
- To receive medical treatment
- Obtain the necessary services to handle a crisis caused by violence, stalking, assault, sexual assault or domestic violence.
- To prepare for or attend court hearings.
The only exceptions to the leave is if the leave would cause undue hardship for the employer or if the employee fails to provide reasonable notice, or is impractical, unreasonable, or unnecessary under the circumstances.
Maine’s Military Family Leave Act
Employers who have at least 15 employees must provide military family leave. Employees must have been employed for at least the previous 12 months and have worked at least 1,250 hours during that time period. Employees may take the leave if their spouse, domestic partner, or child is a resident of Maine and is deployed for active duty lasting longer than 180 days. Employees can take a leave of up to 15 days during the 15 days prior to the deployment. If the family member is granted leave, the employee may take the leave during deployment or for the 15 days following deployment.
Maine’s Family Medical Leave Law
In addition to the Federal Family Medical Leave Act (FMLA), the State of Maine has passed its own version of a Family Medical Leave Law. There are some striking differences between the federal law and the state’s mandate. First, Maine’s law provides up to 10 weeks of leave, instead of the 12 weeks provided by FMLA. Additionally, it covers many small businesses that are currently excluded under the law, outlined below.
Employees Covered under the Law:
Any employee whose employer has 15 or more employees, at the same location, is covered under Maine’s Family Leave Law. This incorporates many small businesses who do not fall under the Federal FMLA requirements of 50 workers within a 75 mile radius. Additionally any state agency employee is covered by the law and any employee of a city or municipality with at least 25 employees is also covered by the law. Under FMLA, all federal, state, and local governments are subject to the Federal law, regardless of the number of employees it employs. That means that many small businesses fall under Maine’s Family Medical Leave, but are excluded from the Federal law, while many municipalities that are excluded from Maine’s law still fall under the Federal Law.
Employees must have worked for their employer for at least 12 concurrent months prior to taking leave. There is no minimum hours worked requirement. This is unlike FMLA, under which an employee must have worked at least 1,250 hours for the employer in the previous 12 months. Further, an employee must have worked for their employer for at least 12 months although those months don’t have to be concurrent or consecutive.
Permissible Uses for Family Medical Leave
Employees are allowed to take Family Medical Leave if they or their immediate family member has a serious health condition. Family members included in the leave include the employee’s spouse, domestic partner, child, parent, or sibling who lives with the employee. Domestic partners have lived with the employee for at least 12 months and share the financial, living and other arrangements according to Maine law. A serious health condition is one that requires a hospital stay or continuing treatment.
- Spouse or Domestic Partner
Employees can also take leave if they or their spouse or domestic partner have a baby or adopt a child under the age of 16. This provision includes both mothers and fathers. Employees who are donating an organ for transplant can take leave. Lastly, employees who have a family member who dies or is seriously injured due to military service are allowed to take leave under Family Medical Leave Law.
- Serious Illness of the employee or family member
- Birth of a child
- Adoption of a child under 16 yrs.
- Donating an organ for transplant
- Family member dies or is seriously injured from Military Service.
FMLA additionally specifies that employees can take leave for the placement of a child through the foster care system into the employee’s home. It also covers time for activities and arrangements when a spouse, child, or parent in the National Guard is called into Active Duty or is already on Active Duty. Plus it allows employees up to 26 weeks to care for a family member injured in the military. FMLA also expands the definition of a serious health condition to include pregnancy or prenatal care. It also includes any illness that prevents the employee from working for 3 consecutive days plus a doctor’s visit within 7 days and a follow up visit within 30 days. It also includes any illness that prevents work or regular activities for more than 3 days and ongoing medical treatment within 7 days. Any chronic condition requiring 2 or more doctor visits a year and and permanent or long term incapacity that can’t be treated (such as Alzheimer’s) are also included.
Overview of Family Medical Leave
Employees can take leave for up to 10 weeks in a 2 year period. The leave is unpaid, although employees can use paid leave during their 10 weeks of Family Medical Leave. Further, employers can require that employees use paid leave during their Family Medical Leave so that the employee doesn’t have additional paid leave available later in the year.
If an employee is taking leave for their own, or a family member’s, serious health condition or because they are donating an organ, they can take leave intermittently or on a reduced schedule that equates to 10 regular work weeks. Employers can also choose to allow employees to take leave on a part time basis after the birth or adoption of a child. Employers also have the right to transfer employees taking leave on a part time basis or a reduced schedule to a job that better accommodates the leave schedule. Federal FMLA allows for leave to be taken throughout the year and places no restrictions on those allowances.
While employees take leave, employers must continue to provide benefits to employees. However, employers can require that employees pay for those benefits while on leave. This includes life, health, or disability insurance. This is different that the Federal FMLA which requires that benefits be maintained on the same conditions as during employment. However, if an employee doesn’t return to work, the employer can require that the employee pay back the employer contributions during the leave taken.
Taking Maine Family Leave and FMLA Leave
The differences between Maine’s Family Leave and Federal FMLA laws mean that in some circumstances, employees will not take leave simultaneously. This will occur when employees take leave for relationships that are allowed under Maine law, but not covered under FMLA law. Domestic Partners, and siblings are relationships not covered for FMLA leave. Employees who take leave to care for these relationships would have access of 10 weeks under Maine FMLA, but would still have another 12 weeks of FMLA leave for the relationships covered under FMLA.
Another example is if an employee takes leave to donate an organ. Organ donation is not covered under FMLA law. Therefore the employee would not be using FMLA leave while using Maine’s Family Leave.
Maine has a military provision in their Family Leave law, but it does not cover the exigencies that FMLA does. Therefore, anytime an employee takes leave related to a family member who is in active military service, please consult the Family Medical Leave Act article to determine if both FMLA and Maine Leave applies.
Notice and Verification Requirements
Both the Maine Family Medical Leave Law and FMLA require that employees give a 30 day notice of leave to be taken when possible. If leave is unexpected, then employees must notify the employer according to the employer’s normal policies.
Maine’s Law allows employers to require documentation that Family Medical Leave is being taken in accordance with the law. Under FMLA, employers are also allowed to require certifications of the leave taken. FMLA also allows the employers to require a second or third opinion, but the employer must pay for those additional costs. Employers can contact a healthcare provider as long as it is not the employee’s direct supervisor.
Protection and Retaliation
Employees must be reinstated to the same or to a similar job upon returning to work after the leave is taken. However, if the employee’s job class was effected by a policy change during the leave, the employee will also be subject to the change. For example, if everyone with the employee’s job title was laid off during the leave, the employee can also be laid off upon returning to work.
Penalties and Redress of violations:
Employees are also protected against retaliation for using leave or asserting their rights to use leave. Employers cannot penalize these employees in any way. The Maine Department of Labor oversees complaints for violations of the law. Additionally, employees can go to court to seek redress. Redress can include, but is not limited to the payment of back pay, $100 daily fine for each day the violation occurs, the payment of twice the amount of back pay owed, and attorney fees.
Let SwipeClock Help
Businesses who have employees in Maine and a growing list of other cities may have to comply with multiple conflicting City ordinances defining Sick leave accrual and usage laws. Additionally, these businesses have to also comply with Federal Overtime Laws, the Family Leave Medical Act and any other national or local laws that are enacted. SwipeClock provides a comprehensive array of workforce management and time tracking tools that can help businesses to more easily stay in compliance with local and national laws. Records are effortlessly kept for years and accrual is automatically tracked and reported to employees according the state and city laws. Additionally, with geo-timekeeping clocks, businesses can effortlessly track time worked in specific cities to ensure compliance.
SwipeClock is a leading provider of cloud-based integrated workforce management solutions that include automated time and attendance, advanced scheduling, and leave management capabilities. The company’s products, including TimeWorks Plus, Time Simplicity, and Workforce Management Clock enable employers to manage their most important and expensive asset-employees-by transforming labor from a cost of doing business to a competitive advantage. SwipeClock’s workforce management solutions are sold through over 850 partners that empower more than 26,000 businesses to lower labor costs, comply with regulatory mandates, and maximize their profits. For more information, please visit www.swipeclock.com.
Written by Annemaria Duran. Last updated Jan 17, 2017