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Other Leaves: Maine

Other Leaves requirements for other states

Federal law and guidance on this subject should be reviewed together with this section.

Author: Kai McGintee, Bernstein Shur Sawyer & Nelson

Summary

  • There are various types of leave that may be available to an employee in Maine. See Leaves of Absence.
  • Maine requires a covered employer to provide up to 10 weeks of family medical leave to eligible employees. See Family and Medical Leave.
  • An employer must provide leave for victims of domestic violence to obtain medical treatment and attend necessary court hearings. See Domestic Violence Leave.
  • An employer must allow an employee to take leave to serve as a juror. See Jury Duty Leave.
  • An employer must provide state legislators with a leave of absence for one legislative term. See Legislative Leave.
  • An employer may not terminate or discipline a volunteer firefighter for failing to report to work on time if the employee is responding in the line of duty to a call. See Emergency Responder Leave.
  • An employer must grant reasonable and necessary leave from work, with or without pay, when the leave request is related to an extreme public health emergency. See Public Health Emergency Leave.
  • An employee may be entitled to military leave if they serve as state military members, state Army and Air National Guard members or national reservists and are employed in other than a temporary position. See Military Leave.

Leaves of Absence

There are various types of leave that may be available to an employee in Maine. To the extent that applicable federal, state or local laws conflict, an employer should apply the provisions that provide the greatest benefits and protections to the employee.

An employer should remain alert to the various types of leave available and take care to track employees' leaves of absence, including:

  • The date the leave begins;
  • The type of leave; and
  • The expected return date.

An employee who exercises leave rights is not protected from discipline for legitimate reasons that are unrelated to the leave and that are not otherwise prohibited by law.

If an employer must discipline an employee who has exercised his or her leave rights, it should carefully document the reasons for the discipline, review past application of the rule (to ensure the policy is being enforced evenhandedly), and consider whether to seek the advice of counsel before imposing the discipline.

Family and Medical Leave

Under the Maine Family and Medical Leave Act (MFMLA), an employer with 15 or more employees at one location in Maine must provide an eligible employee with up to 10 weeks of family and medical leave in any two years. The threshold for employer coverage is much lower than under the federal Family and Medical Leave Act (FMLA) so smaller Maine employers should check to determine if they need to provide leave benefits under both state and federal law. For more information on family and medical leave, please see FMLA: Maine.

Organ Donor Leave

Under the MFMLA, a covered employer must provide up to 10 weeks of medical leave in any two-year period to employees to donate an organ for human transplant. Leave can be taken intermittently or on a reduced schedule when medically necessary. For more information on organ donor leave under the MFMLA, please see FMLA: Maine.

Family Military Leave

A Maine employer with 15 or more employees must provide up to 15 days per year of leave to the spouse (including same-sex spouse), domestic partner or parent of a member of the military called to active duty lasting more than 180 days with the state military force or the United States armed forces, under orders of the Governor or the President.

Unlike family and medical leave, for family military leave the employee threshold (15 employees) is not statutorily limited to one location in Maine. For more information on family military leave, please see FMLA: Maine.

Kin Care Leave

Under Maine law, a covered employer that provides paid leave under the terms of a collective bargaining agreement or employment policy must allow employees to use the paid leave for the care of an immediate family member who is ill.

An employee who receives more than one type of paid leave may elect which type and the amount of each type of paid leave to use, except that an employee's election may be limited by an employment policy that is uniformly applied to all employees at that workplace. For more information on kin care leave (family sick leave), please see FMLA: Maine.

Domestic Violence Leave

All employers must provide an employee with a reasonable and necessary leave from work when an employee is a victim of violence, assault, sexual assault, stalking or any act that would support a protection order to do the following:

  • Prepare for and attend court proceedings;
  • Receive medical treatment;
  • Attend to medical treatment for a victim who is the employee's daughter, son, parent or spouse; or
  • Obtain necessary services to remedy a crisis caused by domestic violence, sexual assault or stalking.

The leave may be paid or unpaid.

An employee who is a victim of violence or assault and needs leave must:

  • Communicate the leave request to their employer as soon as possible after learning of the need; and
  • Timely provide their employer with the information necessary for the employer to make an informed decision on the request.

+26 M.R.S. § 850.

An employer may not sanction an employee or deprive the employee of pay or benefits for taking the leave.

An employer does not have to provide this leave if:

  • The granting of the leave would cause an undue hardship to the employer's business operations;
  • The request for leave is not communicated to the employer within a reasonable time under the circumstances; or
  • The requested leave is impractical, unreasonable, or unnecessary based on the facts then known to the employer.

An employer may require an employee to provide reasonable documentation of the family relationship, which may include a statement from the employee, a birth certificate, a court document or similar documents.

If notice of a violation of the domestic violence leave law is given to the employer and the Department of Labor within six months of the occurrence, the Department of Labor may assess penalties as follows:

  • For the denial of leave:
    • A fine paid to the state treasure of up to $1,000 for each violation; and
    • Liquidated damages paid to the employee equal to three times the amount of total fines assessed; and
  • For the termination of an individual for exercising a legal right:
    • Liquidated damages (see above); or
    • Reemployment with back wages.

+26 M.R.S. § 850.

An employer is encouraged to post a notice to employees on employment protections, including leave rights, for victims of domestic violence, sexual assault and stalking.

An employer should consider including a domestic violence leave policy in its handbook to educate employees, and supervisors, about the availability of domestic violence leave and to demonstrate compliance with Maine law.

Jury Duty Leave

An employer may not terminate or threaten to terminate an employee or their health insurance coverage, because the employee receives and responds to a summons for jury service, serves as a juror or attends court for prospective jury service. For more information on jury duty leave, please see Jury Duty: Maine.

Legislative Leave

An employer must grant a leave of absence for an employee to serve as a state legislator. The leave of absence is limited to one legislative term of two years. The employer may decide whether to provide this leave with or without pay.

When authorizing this leave, an employer should also be aware of the following:

  • Notice: The employee must give the employer notice of their intent to become a candidate within 10 days of taking official action to place their name on the ballot. Failure to provide notice waives the right to take leave.
  • Reemployment rights: On return from leave, if the employee is still qualified to perform the duties of the position, the employee is entitled to be reinstated to the original position, or a similar position with the same status, pay and seniority.
  • Exceptions:
    • An employer with five or fewer employees immediately prior to the first day of the leave of absence is not required to provide legislative leave.
    • Employees in temporary positions do not qualify for a leave of absence.
    • An employer who feels that granting the leave of absence will cause unreasonable hardship for the business may appeal for relief by a written notice to the chair of the State Board of Arbitration and Conciliation that includes the name of the employee and the reasons for the alleged unreasonable hardship. The notice of appeal must be filed within 14 days of receipt of the employee's notice requesting leave.

+26 M.R.S. § 821; +26 M.R.S. § 822; +26 M.R.S. § 823; +26 M.R.S. § 824.

An employer should consider including a legislative leave policy in its handbook to educate employees, and supervisors, about the availability of legislative leave and to demonstrate compliance with Maine law.

Emergency Responder Leave

An employer may not terminate or take any other disciplinary action against an employee because of the employee's failure to report for work at the beginning of the employee's regular working hours if the employee failed to do so because the employee was responding to an emergency in the employee's capacity as a municipal or volunteer firefighter (as defined in +30-A M.R.S. § 3151) and the employee reported for work as soon as reasonably possible after being released from the emergency.

Responding to an emergency means responding to, working at the scene of, or returning from a fire call, a hazardous or toxic materials spill and cleanup, or any other situation to which the fire department has been dispatched.

If the employer has designated the employee as essential, or if the employee's regular employment is as a law enforcement officer, a utility worker or medical personnel, and the services of that person are essential to protect public health or safety, then the employer is not required to allow emergency responder leave for that employee. An essential employee is an employee whose absence would cause disruption of the employer's business.

An employer may charge the lost time against the employee's regular pay or against the employee's available leave time.

If time permits, when an employee is responding as a firefighter to an emergency, the employee, the employee's designee or the fire department supervisor must notify the employer that the employee will not report to work at the appointed time. An employer may request that an employee losing work time provide the employer with a statement from the chief of the fire department or the chief's designee stating that the employee was responding to an emergency call and the time of release from the call.

An employer does not have to comply with the emergency responder leave law if the employer and the employee enter into a written agreement, signed by both, that governs procedures to be followed when the employee is called to respond to an emergency as a firefighter and:

  • The local official in charge of calling out firefighters has a written policy that specifies the circumstances under which firefighters will be ordered to remain at an emergency and affirms that firefighters will be released as soon as practicable; and
  • The employee presents a copy of the policy to the employer upon notifying the employer of the employee's status as a firefighter.

If an employer violates the emergency responder leave law, within one year of the alleged violation, the employee may bring an action in Superior Court in the county in which the employee resides or in the county in which the employer's place of business is located. If the court finds that the employer violated the law, and if the employee requests, the court will order the employer to reinstate the employee in the employee's former position without reduction of pay, seniority or other benefits. The court will also order any other remedy necessary to return the employee to the position the employee would have been in had the employer not violated the law, including payment of back pay and reinstatement of any other benefits lost during the period in which the termination or disciplinary action was in effect.

+26 M.R.S. § 809. Maine has enacted amendments to this law. See Future Developments.

An employer should consider including an emergency responder leave policy in its handbook to educate employees, and supervisors, about the availability of emergency responder leave and to demonstrate compliance with Maine law.

Public Health Emergency Leave

An employer must grant a reasonable and necessary leave from work, with or without pay, when an employee is unable to work because of the following reasons:

  • The employee is under an individual public health investigation, supervision or treatment related to an extreme public health emergency;
  • The employee is acting in accordance with an extreme public health emergency order;
  • The employee is in quarantine or isolation or is subject to a control measure in accordance with extreme public health emergency information or directions issued to the public or one or more individuals;
  • An employer gave a direction in response to a concern that the employee may expose other individuals in the workplace to the extreme public health emergency threat; or
  • The employee is needed to provide care or assistance to a covered family member.

A covered family member includes the employee's: spouse, domestic partner, parent, or child (including a child for whom the employee is the legal guardian).

+26 M.R.S. § 875.

An extreme public health emergency means the occurrence or imminent threat of widespread exposure to a highly infectious or toxic agent that poses an imminent threat of substantial harm to the population of the state. +22 M.R.S. § 801(4-A).

An employer who fails to grant leave is not in violation of the law if:

  • The employer would sustain undue hardship from the employee's absence, including the need to downsize for legitimate reasons related to the impact of the extreme public health emergency on the operation of the business; or
  • The request for leave is not communicated to the employer within a reasonable time under the circumstances.

Leave must be for the duration of an extreme public health emergency and for a reasonable and necessary time period following the termination of the extreme public health emergency for diseases or conditions that are contracted or exposures that occurred during the extreme public health emergency.

The taking of leave may not result in the loss of any employee benefits accrued before the date on which the leave commenced and does not affect the employee's right to health insurance benefits on the same terms and conditions as applicable to similarly situated employees. For any leave that extends beyond the time period of the emergency, the employer must allow an employee to continue the employee's benefits at the employee's expense. The employer and employee may negotiate for the employer to maintain benefits at the employer's expense for the duration or any portion of this extended leave. +26 M.R.S. § 875.

Upon the employee's return to work, the employer has the right to request and receive written documentation from a physician or public health official supporting the employee's leave.

The Department of Labor may assess civil penalties of up to $ 200 for each violation if notice of the violation is given to the employer and the department within six months of the occurrence.

An employer should consider including a public health emergency leave policy in its handbook to educate employees, and supervisors, about the availability of public health emergency leave and to demonstrate compliance with Maine law.

Military Leave

An employer must provide military leave to state military members, state Army and National Guard members or national reservists. Such leave does not have to be provided to temporary employees and may be paid at the employer's discretion. For more information on military leave, please see USERRA: Maine.

Training

Employers should be aware that certain leaves are protected by state law and therefore it should train its supervisory employees not to take action against an employee because he or she took leave or indicated that he or she may take the leave in the near future. See Training and Development: Federal.

Future Developments

Veterans Medical Appointment Leave

Effective September 19, 2019, employers in Maine must allow veterans to take time off from work to attend a scheduled appointment at a medical facility operated by the US Department of Veterans Affairs. The veteran must provide notice of the appointment to the employer as soon as reasonably possible.

If an employer provides paid leave, then the employer must allow a veteran to use available paid leave to attend the appointment. If the veteran has used all available paid leave or if the employer does not provide paid leave, then the employer must grant unpaid leave to the veteran to attend the appointment.

Paid leave means the same as under the family sick leave law and includes:

  • Sick time;
  • Vacation time;
  • Compensatory time; and
  • Leave that is provided as an aggregate amount for use at the discretion of the employee for any of these same purposes.

It does not include paid short-term or long-term disability, catastrophic leave or similar types of benefits. +26 M.R.S. § 636.

A veteran means a person who has served on active duty in the US Armed Forces, or has served in the National Guard of any state or the US Armed Forces Reserves, and was discharged or released with an honorable discharge. +26 M.R.S. § 877.

+2019 Bill Text ME H.B. 1190.

Search-and-Rescue Volunteer Leave

Effective September 19, 2019, Maine has added a law protecting search-and-rescue volunteers who miss work while responding to an emergency. +2019 Bill Text ME H.B. 660. The new law is similar to Maine's current emergency responder leave law, as amended.

An employer may not terminate, take any other disciplinary action against or otherwise discriminate against an employee because of the employee's failure to report for work at the beginning of the employee's regular working hours or because of the employee's absence during the employee's regular working hours if:

  • The employee failed to report or was absent because the employee was responding to a search-and-rescue operation requested by a law enforcement agency in the employee's capacity as a search-and-rescue volunteer; and
  • The employee reported for work as soon as reasonably possible after being released from the search-and-rescue operation.

The employer may charge the lost time against the employee's regular pay or against the employee's available leave time.

Search-and-rescue volunteer means a person who is certified in search-and-rescue practices and procedures by a recognized organization. A recognized organization means a nonprofit search-and-rescue organization recognized by the Department of Inland Fisheries and Wildlife, Bureau of Warden Service. Search and rescue means a search, rescue or search and rescue.

Exceptions

The law does not apply to:

  • An employee who has been designated as essential by the employer (i.e., an employee whose absence would cause significant disruption of the employer's business). This designation must be made in writing and signed by the employer and employee; and
  • An employer and employee that enter into a written agreement, signed by both, that governs procedures to be followed when the employee is called to respond to a search-and-rescue operation as a search-and-rescue volunteer.

Notice and Verification

Covered employees must make every effort to immediately notify their employer that they may be late to or absent from work as a result of responding to a search-and-rescue operation requested by a law enforcement agency prior to or during the employee's regular working hours. Notification may be provided by:

  • The employee;
  • The employee's designee; or
  • The search-and-rescue operation supervisor.

An employer may request that an employee losing work time provide it with a statement from the official in charge of the recognized operation, the official's designee or a law enforcement official responsible for the search-and-rescue operation verifying that the employee was responding to a search-and-rescue operation and specifying the date and time of release from the operation.

If the recognized organization in charge of calling out search-and-rescue volunteers has a written policy that 1) specifies the circumstances under which search-and-rescue volunteers will be ordered to remain at a search-and-rescue operation; and 2) affirms that search-and-rescue volunteers will be released as soon as practicable, then employees must give their employer a copy of the policy upon notifying the employer of their status as a search-and-rescue volunteer within 30 days of employment or within 180 days of the law's effective date.

Employees must notify their employer of any change to their status as a search-and-rescue volunteer, including termination of that status, within 30 days of the change.

Enforcement

Within one year of the date of an alleged violation of the law, an employee may bring an action in Superior Court in the county in which the employee resides or in which the employer's place of business is located. If the court finds that the employer violated the law, and if the employee requests, the court will order the employer to reinstate the employee in the employee's former position without reduction of pay, seniority or other benefits. The court will also order any other appropriate remedy necessary to return the employee to the position the employee would have been in had the employer not violated the law, including payment of back pay and reinstatement of any other benefits lost during the period in which the termination or disciplinary action was in effect.

Emergency Responder Leave Law Amendments

Maine has amended its law protecting municipal and volunteer firefighters who miss work while responding to an emergency. +2019 Bill Text ME H.B. 954. The amendments, effective September 19, 2019, include:

  • Covering an emergency medical services person, as defined in +32 M.R.S. § 83, including a volunteer emergency medical services person;
  • Defining responding to an emergency to include an emergency services call;
  • Prohibiting an employer from "otherwise discriminating against" a covered employee, in addition to prohibiting an employer from terminating or taking other disciplinary action;
  • Protecting a covered employee's "absence during the employee's regular working hours," in addition to protecting an employee's failure to report for work at the beginning of the employee's regular working hours;
  • Requiring employees to "make every effort to immediately notify the employer" that the employee may be late to or absent from work as a result of responding to an emergency prior to or during the employee's regular working hours, and removing the phrase "if time permits";
  • Allowing an employer to request a statement from the fire department or emergency medical services provider "verifying that the employee was responding to an emergency and specifying the date, time and duration of the response" (instead of a statement that the employee was responding to an emergency call and the time of release from the call);
  • Continuing to exempt from the law an employer and employee that enter into a written agreement, signed by both the employer and employee, that governs procedures to be followed when the employee is called to respond to an emergency as a firefighter, but without conditions such as the employee providing the employer with a written policy of the local official in charge of calling out firefighters (amended provision also applies to an emergency medical services person);
  • Continuing to allow an employer to designate an employee as essential to the employer's operations, but only if the employee's absence will cause "significant" disruption to the employer's business and if the designation is made in writing and signed by both the employer and employee;
  • Requiring employees to file the following information with their employer: If the chief of the fire department or emergency medical services provider has a written policy that 1) specifies the circumstances under which firefighters or emergency medical services persons are needed to respond to an emergency; and 2) affirms that firefighters or emergency medical services persons will be released as soon as practicable, then employees must give their employer a copy of the policy upon notifying the employer of their status as a firefighter or emergency medical services person within 30 days of employment or within 30 days of the bill's effective date; and
  • Requiring employees to notify their employer of any change to their status as a firefighter or emergency medical services person, including termination of that status, within 30 days of the change.

Earned Paid Leave

Maine's Earned Paid Leave Law (EPLL), effective January 1, 2021, requires covered employers to provide paid time off to eligible employees to use for any reason. 26 M.R.S. § 637, as added by +2019 Bill Text ME S.B. 110.

Covered Employers

The EPLL applies to employers with 11 or more employees in the usual and regular course of business for more than 120 days in any calendar year.

The definition of employer under the EPLL follows the state unemployment insurance law. +26 M.R.S. § 1043(9).

Eligible Employees

The EPLL defines an employee as a person engaged in employment.

The definition of employment follows the state unemployment insurance law. +26 M.R.S. § 1043(11).

However, under the EPLL, employment does not include employment in a seasonal industry as defined in +26 M.R.S. § 1251.

The EPLL does not apply to an employee covered by a collective bargaining agreement (CBA) during the period between January 1, 2021, and the expiration of the CBA.

Qualifying Reasons for Leave

No qualifying reasons are defined in the EPLL. Therefore, an employee may take earned paid leave for any reason.

Accrual and Use of Leave

An employee may accrue one hour of earned paid leave from a single employer for every 40 hours worked, up to 40 hours in one year of employment. Accrual begins at the start of employment.

An employer is not required to permit the use of leave before the employee has been employed for 120 days during a one-year period.

Compensation and Benefits

An employee taking earned paid leave must:

  • Be paid at least the same base rate that the employee received immediately prior to taking leave; and
  • Receive the same benefits as those provided under the employer's established policies regarding other types of paid leave.

The taking of earned paid leave may not:

  • Result in the loss of any employee benefits accrued before the date on which the leave began; and
  • Affect the employee's right to health insurance benefits on the same terms and conditions as applicable to similarly situated employees.

Employee Notice Requirements

Absent an emergency, illness or other sudden necessity for taking earned leave, employees must give reasonable notice to their supervisor of the intent to use leave.

Employees must schedule the use of leave to prevent undue hardship on the employer, as reasonably determined by the employer.

Interaction With Other Laws and Policies

The EPLL does not prevent an employer from providing greater benefits than required by the law.

However, the EPLL contains a preemption provision that prohibits a municipality or other political subdivision from enacting an ordinance or other rule regulating earned paid leave.

Additional Resources

Maine Supplement: Table of Contents