Three open questions about Maine’s new PFL law

On July 11, 2023, Maine enacted a new law that will broadly provide paid family leave benefits to most private sector employees in the state. You can read a copy of the law here. 

The statute addresses many key details about how paid leave in Maine will work, but there are still questions left to be answered by regulations that will be issued by the Maine Department of Labor.

In this article, we discuss a few open questions about the law that may be answered in the regulations.

How will weekly benefits be calculated?

The law is a bit ambiguous when it comes to how benefits will be calculated. 

As with other state PFL laws, benefits under Maine’s laws will be calculated based on the employee’s average weekly wage, which is defined as:

1/52 of aggregate total wages paid in the state for a covered individual, as reported on employer calendar reports for the calendar year, divided by the arithmetic mean of midmonth weekly covered employment reported on employer contribution reports for the calendar year in the form and manner determined by the department. 

The statute goes on to define the employee’s “base period” as the four calendar quarters immediately preceding the first day of an individual’s benefit year. A “benefit year” is the first 4 calendar quarters immediately preceding the first day of an individual’s benefit year.

Interestingly, the statute’s definition and calculation of the “average weekly wage” is based on a calendar year. The definition does not actually reference the employee’s “base period.” Most PFL laws determine the average workweek based on the employee’s base period, for example, by looking at the earnings in the first four out of the last five calendar quarters before the leave benefits begin and dividing the earnings by 52 to get the average weekly wage. 

Instead of taking that approach, Maine’s definition of “average weekly wage” is based on wages reported in a “calendar year” and does not reference the base period (even though that term is defined). It is unclear whether Maine’s weekly benefit amount will be calculated on the base year. 

Employers will need to keep an eye out for Department of Labor announcements about how benefits will be calculated because that information is necessary for employers with paid parental leave policies to properly supplement the amounts paid by Maine’s program.

What notice is the employee required to provide to the employer?

The law states that unless there is an emergency, illness, or other sudden necessity for taking leave, an employee “shall give reasonable notice” to the employee’s supervisor of the employee’s intent to use leave under the law. 

This provision is notable for two reasons:

• “Reasonable Notice.” The FMLA specifically requires employees to give 30 days’ notice of the need for foreseeable leave. Maine’s law is more open-ended and only requires “reasonable” notice. The regulations may address the notice that is generally reasonable.

• Supervisory Notice. Under the FMLA, an employer may require an employee to follow its normal policies for requesting leave and can take action against employees who fail to follow the usual and customary rules for requesting leave so long as it does not discriminate against employees taking FMLA leave. Many employers require that employees give notice to HR departments or third-party administrators, who are typically able to best handle leave requests, rather than saddling supervisors with the obligation to manage leave requests. Maine’s law, in contrast, specifically requires that an employee’s notice of need for leave be provided to a supervisor and does not indicate that employers can establish additional or alternative requirements for requesting leave.

The regulations may provide further detail about whether an employer can require employees to adhere to the employer’s usual processes for requesting leave, or whether the employee can only be required to give notice to the supervisor as indicated in the statute.

What are the consequences if an employer fails to give its required notices?

Maine’s law also has a provision related to the consequences of an employer failing to provide required notice of an employee’s rights under the law.

The law creates two notice obligations for all Maine employers. First, they must post a notice about the law in a conspicuous place. Second, no more than 30 days after each employee’s start date, the employer must issue to the employee a written explanation of the availability of leave benefits.

Interestingly, if the employer fails to give the notice required by the law, then the employee is relieved of any obligation to provide notice to the employer that the employee is taking a leave of absence protected by the law. The law states: “If an employer fails to provide notice as required . . . the employee’s obligation to provide notice . . . is waived.” Accordingly, if an employer fails to display the required poster and to provide the required written notice, there could be situations where an employee can go on a leave protected by the law without communicating about it with the employer. The regulations may provide further clarification and detail about the circumstances when an employee can go on a protected leave without providing notice to the employer.

 * * * *

The Maine Department of Labor has announced that it will begin its rulemaking process in January 2024 and will issue initial rules by January 1, 2025. These questions and many more may be addressed in the forthcoming regulations.