Offering Paid Leave to Employees for Family and Medical Issues Is This State’s “Maine” Concern

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Patricia Tsipras

July 20, 2023

On July 11, 2023, Maine enacted a generous paid family and medical leave program that will provide up to 12 weeks of paid leave per year to eligible employees in the public and private sectors, effective January 1, 2026.  See 2023 Me. H.B. 163.

Who is an eligible employee?

Full- and part-time employees working in the public (except the federal government) or private sectors, including those who are self-employed,[1] are eligible for leave under Maine’s new program if they have earned at least six times the State’s average weekly wage in the first four calendar quarters immediately preceding the first day of their benefit year.  Currently, the State’s average weekly wage is $1,036.  Thus, an employee must have earned at least $6,216 in the preceding four calendar quarters to be eligible to take leave.

For what reasons may an eligible employee take leave?

Eligible employees may take paid leave for the following reasons:

• To care for the employee’s serious health condition
• To care for a family member with a serious health condition
• The birth of the employee’s child or the employee’s domestic partner’s child
• The placement of a child 16 years of age or younger with the employee or the employee’s domestic partner in connection with adoption of the child
• To bond with the employee’s child during the first 12 months after the child’s birth, adoption, or foster care placement
• To attend to a qualifying exigency or need arising out of a family member’s active duty military service
• To care for a family member of the employee who is a covered service member
• For the death or serious health conditions of certain family members in the military who died or incurred a serious health condition while on active duty
• Safe leave, also known as sexual assault victim leave
• For the donation of an organ of the employee for a human organ transplant

The new law defines “family member” broadly to include a biological, foster, step, or adopted child; grandparent; grandchild; sibling; spouse; domestic partner; or an “individual with whom the covered individual has a significant personal bond that is or is like a family relationship, regardless of biological or legal relationship.”

The new law defines “serious health condition” as “an illness, injury, impairment, pregnancy, recovery from childbirth or physical, mental or psychological condition that involves inpatient care in a hospital, hospice or residential medical care center or continuing treatment by a health care provider.”

How much leave may eligible employees take?

An eligible employee may take up to 12 weeks of family leave and up to 12 weeks of medical leave per year.  However, they may not take more than 12 weeks, in the aggregate, of family leave and medical leave in the same year.

Eligible employees may take their leave intermittently in increments of not less than eight hours.  If an employer and employee agree, an employee also may take leave via a reduced schedule.

Eligible employees may take leave immediately upon beginning employment.

What documentation is required to support a request for the benefits of the program?

Eligible employees must provide their employers with reasonable notice of their intent to take leave.

Maine’s Department of Labor will establish procedures and prepare forms for filing claims under the program.  Those procedures will specify the documentation that is necessary to support a claim for the program’s benefits.

Employers must keep confidential any medical or health information that they receive from employees seeking the program’s benefits.

How will eligible employees be paid under the program?

The program will use Maine’s average weekly wage (currently $1,036) as a baseline.  The program will replace 90 percent of an employee’s wages (bonuses excluded) for income up to 50 percent of that baseline.  Income over 50 percent of the baseline will be replaced at 66 percent, up to a maximum weekly benefit.[2]

Is the leave job-protected?

If an eligible employee has worked at least 120 days prior to taking leave, the employer must restore that employee to the same or equivalent position with the same or equivalent benefits, pay, and other conditions of employment.

How will the program be funded?

To fund the new program, Maine will impose a one percent payroll tax, split evenly between the employer and the employee, beginning on January 1, 2025.  Eligible employees will be able to take paid family and medical leave beginning on January 1, 2026.

Do any exemptions exist?

Employers that offer comparable paid leave programs can opt out of the State’s program.  However, such employers cannot impose on employees a cost for their program that is greater than the payroll tax under the State’s plan.

In addition, employers with 15 or fewer employees will be exempt from paying into the State plan.  However, employees of those businesses will be required to pay into the program and may claim benefits.

What else do you need to know?

• No retaliation. The law prohibits retaliation against an employee for exercising their right to paid family and medical leave.
• Notice to employees. Employers must post a workplace notice that outlines the benefits available under the program.  In addition, within 30 days of a new hire, employers must provide notice, in writing, to the employee that includes an explanation of benefits, as well as information on employees’ rights and obligations.
• Penalty for seeking leave under false pretenses. Employees who take paid leave based on false statements or misrepresentations will be disqualified from the program for one year, and may have to repay benefits they already have received.

Employer Takeaways

In preparation for the program’s effective date, employers should review and revise their leave policies, as well as train their managers and human resources personnel on the law.

[1] Though self-employed individuals are eligible for leave under the paid leave program, this article will refer to all eligible individuals as employees.

[2] The maximum weekly benefit is the State’s average weekly wage, which changes annually.

The author of this article, Patricia Tsipras, is a member of the Bar of Pennsylvania.  This article is designed to provide one perspective regarding recent legal developments, and is not intended to serve as legal advice in Maine, Pennsylvania, or any other jurisdiction, nor does it establish an attorney-client relationship with any reader of the article where one does not exist.  Always consult an attorney with specific legal issues.