• II. Overview of Maine's Family Requirements and Relationship with Federal FMLA
    Jun 16, 2015

    Maine's Family and Medical Leave Requirements, 26 M.R.S.A. § 843 et seq., apply to any Maine employer with twenty-five employees total and fifteen or more employees in one location. Such employers must allow eligible employees to take a leave of absence for up to ten consecutive weeks in any two years due to certain family or medical reasons.

    The following guidelines explain how Maine's act differs from the federal FMLA. Employers who are covered by the federal FMLA should note that even when an employee is not eligible under the federal FMLA, he or she may be covered under Maine's FMLR. These employers must also take note that any aspect of Maine's FMLR which is more generous to employees than is the federal FMLA must be provided to any employee eligible under both Acts. Indeed, the employee always receives the most generous provision whenever the FMLA, the FMLR, and/or the employer's own policies are in conflict.

    A. Which employers are subject to Maine's FMLR?

    Any employer with 25 or more employees, 15 of whom are in one location, must comply with the FMLR. (Note that employers with fifty or more employees in Maine may or may not be subject to the federal Family and Medical Leave Act (see Section I), but will always be subject to the FMLR).

    --"Employee" includes any person who may be permitted, required, or directed by an employer in consideration of direct or indirect gain or profit to engage in any employment but does not include independent contractors.

    B. Which employees are eligible to take leave under the FMLR?

    Under the FMLR, an employee of a covered employer who works in a workplace with 15 or more employees is eligible to take family or medical leave if he or she has been employed by the employer for twelve (12) consecutive months. Note that under the FMLA, the requirement is 12 months total with 1250 hours in the past 12 months, but not necessarily 12 consecutive months.

    C. What are the four valid reasons for taking FMLR leave?

    Under the FMLR, an eligible employee may take family and medical leave (up to ten consecutive weeks in any two years) only for:

    --Serious health condition of the employee;
    --The birth of the employee's child;
    --The placement of a child 16 years of age or less with the employee in connection with the adoption of the child by the employee; or
    --A child, parent, or spouse with a serious health condition.

    D. What is the definition of "serious health condition"?

    The FMLR defines "serious health condition" similarly to the way that the federal FMLA statute defines that term. It is unclear whether the definitions developed under the U .S. DOL's regulations will apply, however.

    A "serious health condition" is "an illness, injury, impairment or physical or mental condition that involves:

    A. Inpatient care in a hospital, hospice or residential medical care facility;
    B. Continuing treatment by a health care provider.

    26 M.R.S.A. § 843(6)(1997).

    E. What is the employee's right to reinstatement?

    An employer must restore an employee who has taken family medical leave to the position held by the employee when the leave commenced or to a position with equivalent seniority status, employee benefits, pay and other terms and conditions of employment.

    --An employer may deny restoration if it can prove that the employee was not restored as normally required because of conditions unrelated to the employee's exercise of rights pursuant to the FMLR.

    F. What benefits are employees entitled to during FMLR leave?

    Leave taken pursuant to the FMLR is generally unpaid. Of course, the employer may provide paid leave for any of the specified reasons if it chooses to do so.

    Also, the employee may qualify for short-term or long-term disability insurance benefits, if any. This depends on the policy's specifications.

    No benefit accrued before the commencement of the family medical leave may be taken away due to the fact that the employee took the leave.

    An employer must make it possible for employees to continue all their employee benefits, including but not limited to health coverage, but wholly at the employee's expense. Thus, unlike the FMLA, which requires the employer to continue paying any share paid by the employer prior to the leave, the FMLR allows the employer to transfer the entire costs of health premiums to the employee during leave.

    G. How much leave is required under the FMLR?

    Employers need only give ten consecutive weeks in any two-year period.

    Intermittent leave or a part-time schedule are not required under the FMLR. The language "any two-year period" suggests that employers are required to use a "rolling" leave year rather than a calendar year or other fixed leave year. (See section V.F.)

    Employers may require thirty (30) days' notice of the need for leave and of the dates the leave will begin and end, except in cases where medical emergency prevents the giving of such notice.

    H. Substitution of Paid Leave

    The FMLR is silent with respect to whether employer can require employees to use up accrued paid leave, such as sick days or vacation leave, during family and medical leave.

    I. May employers require medical verification and certification?

    Employers may require certification from a physician to verify the need for leave. With one exception (see below), other practitioners (e.g., nurses, psychologists, clinical social workers) need not be accepted by the employer .

    Employees who with the tenets and practice of a recognized church or in good faith rely on treatment by prayer or other spiritual means in accordance religious denomination may submit certification from an accredited practitioner of those healing methods.

    The FMLR is silent with regard to whether or not employers may use a certification form or what may included in such a form. Maine employers not covered by the FM LA who wish to use a form may wish to adopt the form suggested by the U.S. DOL (or one similar to it). Such a form at least has the blessing of a federal agency that regulates a law similar to the FMLR, and it seems likely that the Maine DOL or a court would find the use of such a form to be reasonable.

    J. What is a violation of the Maine FMLR?

    The prohibitions of the FMLR are similar to those of the FMLA:

    Employers may not interfere with, restrain or deny the exercise of or the attempt to exercise any right provided by the FMLR.

    Employers may not discriminate against any employee for exercising any right provided by the FMLR.

    Employers may not retaliate against any employee who opposes any practice made unlawful by the FMLR.

    --The terms "discriminate" and retaliate include "discharge, fine, suspend, expel, discipline or in any other manner discriminate."

    K. How may employees enforce their rights?

    Employees may bring a civil action against any employer to enforce their rights under the FMLR.

    Remedies available include:

    --An injunction against any act or practice that violates or may violate this subchapter, and
    --Lost wages and benefits-
    --Other pecuniary damages (e.g., home nursing costs or child care costs), and
    --Liquidated damages of $100 for each day the violation continues, payable to the employee.

    L. Miscellaneous

    Employers must post the Maine Department of Labor's poster regarding certain labor laws, including the FMLR, in an accessible, commonly used area (an area where employees will see it). This preprinted notice may be obtained from the Maine DOL Bureau of Labor Standards (207-624-6400).


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