January 17, 2022

Volume XII, Number 17


January 15, 2022

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Maine Moves Toward Mandating Earned Employee Leave

Maine is one step closer to requiring that private employers with 10 or more employees provide “earned paid leave” that employees can take for any reason.

The Maine House of Representatives passed L.D. 369, An Act Authorizing Earned Employee Leave, by a 94–45 margin on May 8, 2019. The bill previously passed the senate by a voice vote on May 7, 2019.

L.D. 369, initially titled “An Act to Support Healthy Workplaces and Healthy Families by Providing Earned Paid Sick Leave to Certain Employees,” surfaced from the amendment process with a new title reflecting that it provides not just sick leave, but paid leave for any reason. The version that passed the senate and house requires private employers—except seasonal employers or employees covered by a collective bargaining agreement—that employ 10 or more employees for more than 120 days in the calendar year to provide 1 hour of paid leave for every 40 hours worked, up to a maximum of 40 hours of paid leave per year.

Under the bill, an employee can start accruing paid leave when employment starts, but he or she cannot use the paid leave until after 120 days of employment.

Unlike the 11 states and Washington, D.C. that have mandatory paid sick leave laws, the Maine bill does not specify the leave as sick leave. Rather, employees can take the paid leave for any reason. The bill’s sponsor, Senator Rebecca Millett, said employees could use the earned time off to care for a sick child or deal with an emergency such as a flooded basement or flat tire.

Additionally, the bill does not require much notice to employers. Under L.D. 369, “[a]bsent an emergency, illness or other sudden necessity,” an employee need only provide “reasonable notice” to use the paid leave. The bill does not define what reasonable notice is.

By rule, the house and senate must approve the amended bill again before it heads to Governor Janet Mills. If Governor Mills, who has publicly expressed support for the bill, signs it into law, then it will take effect on January 1, 2021.

This new earned leave requirement would cover approximately 85 percent of Maine’s private sector employees.

Key Takeaways

Aside from looking out for new posters from the Maine Department of Labor to hang at work sites, employers may want to note these key takeaways:

  • The bill requires an employer, except one in a seasonal industry, that employs more than 10 employees for more than 120 days in any calendar year to permit each employee to earn paid leave based on the employee’s base pay.
  • Employees can earn 1 hour of leave for every 40 hours worked, up to 40 hours in 1 year of employment.
  • An employee must work for 120 days before using accrued earned paid leave.
  • Employers must pay an employee taking earned leave “at least the same base rate of pay that the employee received immediately prior to taking earned leave” and provide “the same benefits as those provided under established policies of the employer pertaining to other types of paid leave.”
  • An employee taking earned leave maintains any employee benefits accrued before the date on which the leave commenced, and the leave may not affect “the employee’s right to health insurance benefits on the same terms and conditions as applicable to similarly situated employees.”
  • Penalties for employers that fail to comply with the forthcoming law can reach up to $1,000 per violation.
© 2022, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., All Rights Reserved.National Law Review, Volume IX, Number 134

About this Author

Steven Silver, Ogletree, labor and employment lawyer

Steven Silver is an associate in the Portland, Maine office of Ogletree Deakins. Steve focuses his practice on ERISA and long-term disability matters as well as sports law. Steve joins Ogletree Deakins from the Portland office of a regional multi-service firm where he litigated numerous ERISA matters and advised clients on various sports law issues including trademarks for a hockey stick manufacturer, compliance for a skins gaming website, and contract negotiation for a sports league management software startup. Prior to moving to Maine, Steve practiced in Philadelphia where he defended...

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