Update on New Leave of Absence Rights

(from Maine Townsman, February 2007)
By Susanne Pilgrim, MMA Staff Attorney

Over the past few years, the Maine Legislature has expanded the leave of absence rights of employees. This article reviews the most significant new leaves of absence entitlements created or expanded since 2000.

Family Military Leave

Effective April 3, 2006, some Maine employers must provide a leave of absence to employees with family members serving on active duty in the military. The “Act to Assist Maine Military Families,” (P.L. 2005 Ch. 523) applies to all public and private employers with 50 or more employees. Covered employers must provide eligible employees with unpaid leave when a family member is deployed for certain types of duty. Previously, state and federal military leave laws had only required employers to provide a leave of absence for the serviceperson himself/ herself.

In order to be eligible for Family Military Leave, an employee must meet the following requirements:

• The employee must have worked for the employer for at least 12 months AND for at least 1,250 hours during the 12-month period preceding the leave.

• The employee must be the spouse, parent or domestic partner of a serviceperson who is:

• a Maine resident, and

• is in the state military forces (defined in 37-B M.R.S.A. § 102), U.S. Armed Forces, National Guard or Reserves, and

• who will be deployed for military service for more than 180 days in a combat theater or in an area where armed conflict is occurring.

Eligible employees may take a total of up to 15 days of unpaid leave from work per qualified deployment. The leave may be taken during the 15 days immediately preceding a qualified deployment or during the 15 days immediately following the deployment, or in some combination. Upon expiration of the leave, the employee must be returned to the position he/she held at the commencement of the leave, or to a position equivalent in seniority, pay, benefits, status and other conditions of employment. Employers may not discharge, discipline or discriminate against any employee for exercising his/her right to a leave or who opposes any practice that is unlawful under this law.

For more information or a copy of the law, see the HR Toolkit Information Guide entitled “Maine Family Military Leave.”

Family Sick Leave

In 2005, the Legislature enacted “An Act to Care for Families, ” which allows employees the right to use accrued paid time off to care for sick family members (P.L. 2005 Ch. 455).

The Family Care Act applies to public or private employers with 25 or more employees who provide paid leave to employees. Covered employers must allow employees to use earned paid leave for the purpose of caring for an “immediate family member” (employee’s child, spouse or parent) who is ill (an undefined term). “Paid leave” means time away from work for which the employee receives compensation, and is limited to vacation time, sick time, compensatory time and leave that is provided as an aggregate amount for use at the employee’s discretion. Specifically excluded from the definition of “paid leave” are short and long-term disability leaves, catastrophic leaves and similar benefits. The law also applies to employees covered by a collective bargaining agreement unless the collective bargaining agreement provides rights that are equal or greater than those provided under the Act.

If an employer adopts a written policy, it may limit the number of hours that employees are entitled to use to care for ill family members, provided that the policy allows at least 40 hours of family care leave during any 12-month period. A written policy may also impose consistent and uniform limits on the use of leave. For example, an employer policy could require accrued sick leave to be used before accrued vacation time. Without a policy, employees must be allowed to use their entire allotment of accrued leave time (even if it exceeds 40 hours in one year), and the employee will be entitled to choose among all available types of accrued paid leave time.

Employers may require prior notice of the leave and documentation of the illness of a family member. However, the notice and documentation may only be required if employees must provide it when taking leave for their own illnesses. Employers are prohibited from discharging, demoting, suspending, disciplining or otherwise discriminating against an employee that uses family care leave or who files a complaint of violation. The Department of Labor is directed to create regulations to implement the Act. At this time, no regulations have been issued.

Maine Family Medical Leave (FMLA)

In 2001, the Maine FMLA was expanded to allow eligible employees to take leave for the purpose of donating the employee’s organ for a human organ transplant (P.L. 2001 Ch. 684 § 3).

In 2005, remedies available under Maine FMLA were expanded to correspond to those available under the federal FMLA. These remedies include damages, injunctions, and attorneys’ fees (P.L. 2005 Ch. 228).

For more information on the Maine FMLA, see the HR Toolkit Information Packet on our website.

Firefighter Leave

Effective September 17, 2005, volunteer firefighters responding to an emergency may not be discharged or disciplined for failing to report to work at the beginning of the employee’s shift if: (1) the employee was responding to an emergency in the employee’s capacity as a volunteer firefighter; and (2) the employee reported to work as soon as reasonably possible after being released from the emergency (P.L. 2005 Ch. 296). For purposes of the law “emergency” includes a fire call, hazardous or toxic materials spill or clean up, or any other situation to which the fire department has been dispatched (26 M.R.S.A. § 809). Employers may charge lost time against the employee’s pay or leave time, and may request verification of the emergency from the fire department. The law applies to all public and private employers. If time permits, the employee or fire department supervisor must notify the employer that the employee will not report to work on time.

However, a volunteer firefighter may not take leave if his/her regular employment is as a law enforcement officer, utility worker or medical personnel when the services of the employee are essential to protect public health or safety. Employers may also designate other types of employees as “essential” if the absence of the employee would disrupt its business. If deemed essential, the employee cannot use leave under this law.

In addition, the law does not apply in certain situations where the employer and employee have entered into a written agreement concerning leave for fire response. The Maine DOL has created a model agreement for this purpose. See: www.maine.gov/labor/workplace_safety/volunteerffpolicy.html.

Extreme Public Health Emergency Leave

Effective September 17, 2005, all public and private employers must grant leave to employees in certain extreme public health emergencies [defined at 22 M.R.S.A. § 801(4-A). PL 2005 Ch. 383].

An employer must allow an employee leave from work if the employee is unable to work because:

• The employee is under an individual public health investigation, supervision or treatment related to an extreme public health emergency (“EPH”);

• The employee is acting in accordance with an EPH order;

• The employee is in quarantine, isolation or subject to a control measure in accordance with an EPH order or directions issued to the public;

• Because of a direction given by the employer in response to concern that the employee may expose other individuals in workplace to an EPH threat;

• The employee is needed to provide care or assistance to: the employee’s spouse, domestic partner, parent, child or ward (all as defined in statute) in an EPH situation.

Employers do not have to grant leave if: (1) the employer would sustain undue hardship; (2) the employee’s request for leave was not made in a reasonable time under the circumstances; or (3) the employee requesting leave is a state, county or municipal employee whose services are necessary for protecting the public’s health in an EPH, unless there is no other option or person to provide care for the employee’s family member in an EPH situation.

No specific amount of leave is stated in the law. Employers must provide leave for the duration of any EPH and for a “reasonable and necessary” time period following the end of the EPH. When an employee returns from leave, the employer may require written documentation to support the leave request. The employee may not lose accrued employee benefits and his/her health insurance may not be impacted by the leave. If leave extends beyond the “reasonable and necessary” limits, the right to continue health insurance at the employee’s expense must be provided.

Leave for Victims of Violence

Since 1999, all employers have been required to provide a leave of absence to employees who are victims of violence, assault, sexual assaults, stalking and similar crimes (P.L. 1999, Ch. 435). In 2001, this leave of absence was extended to also provide leave for employees with family members that are the victims of such crimes (P.L. 2001 Ch. 685).

Reasonable and necessary leave must be provided to eligible employees for the purpose of: (1) preparing for and attending court proceedings; (2) receiving medical treatment or attending to medical treatment for a victim that is the employee’s daughter, son, parent or spouse; and (3) obtaining medical services to remedy a crisis caused by domestic violence, sexual assault of stalking (26 M.R.S.A. § 850).

An employer does not have to grant leave if: (1) the leave would create an undue hardship for the employer; (2) the leave request was not made within a reasonable time; or (3) the leave is impractical, unreasonable or unnecessary based on the facts known to the employer.