A Comprehensive Guide to the Maine Paid Family Leave Law
On July 11, 2023, Maine enacted a paid family and medical leave law. Leave benefits will be available to Maine employees as of May 1, 2026. Contributions will begin January 1, 2025. You can read the law here.
In this article, we summarize key details about the new law. Regulations have not yet been issued, but when they are, we will know more about how Maine’s program will work.
Coverage and Eligibility
Which employers are covered?
“Employers” include any person or entity that employs employees at a location in Maine. It includes State departments and local agencies and any tribal government that elects coverage. It does not apply to federal employees.
Which employees are eligible for benefits?
An individual is eligible for benefits if they have earned at least 6 times the state average weekly wage in wages that were subject to premiums during their base year. Individuals can also elect coverage if they meet certain requirements.
Are there circumstances that will render an employee ineligible for leave?
A person is not eligible to receive benefits if the state leave administrator finds, through a process established by the Department of Labor rules, that a covered individual willfully made a false statement or misrepresentation regarding a material fact or has willfully withheld a material fact concerning the facts required to be certified pursuant to the law. The department is required to create a grievance process for covered individuals determined to be ineligible.
A covered individual will be disqualified from family and medical leave benefits for one year if the Department determines the individual willfully made a false statement or misrepresentation regarding a material fact, or willfully failed to report a material fact, to obtain benefits under the law.
Qualifying Reasons for Leave
Does the law provide a leave right or just wage replacement without any job protection?
The law provides eligible employees with the right to take a leave of absence for qualifying reasons. It is not just a statute that provides for wage replacement.
What are the qualifying reasons for leave?
An eligible employee can use family leave for any of the following reasons:
To bond with the employee’s child during the first 12 months after the birth or first 12 months after the placement of the child for adoption or foster care;
Due to a serious health condition;
To care for a family member with a serious health condition;
To attend to a qualifying exigency;
To care for a family member of the covered individual who is a covered service member;
To take safe leave.
What does safe leave encompass?
A covered safe leave is any time off taken because the employee or their family member (defined below) is a victim of violence, assault, sexual assault, stalking, or any act that would support an order for protection. An employee can use safe leave to protect themselves or a covered family member by:
Seeking an order for protection;
Obtaining medical care or mental health counseling to address physical or psychological injuries resulting from the act of violence, assault, sexual assault or stalking or act that would support an order for protection;
Making a home secure from the perpetrator or seeking new housing to escape the perpetrator;
Seeking legal assistance
Attending or preparing for court-related proceedings.
How is “serious health condition” defined?
A serious health condition is any illness, injury, impairment, pregnancy, recovery from childbirth or physical, mental, or psychological condition that involves inpatient care in a hospital, hospice, or residential medical care center or continuing treatment by a health care provider.
Which family members are covered?
Family members include an individual or their spouse’s:
Child
Parent
Grandparent
Grandchild
Spouse
A designated individual with whom the covered individual has a significant personal bond that is or is like a family relationship, regardless of biological or legal relationship.
The law covers parent and child biological, adopted, foster, step, in loco parentis, and legal guardianship relationships. For grandchildren, grandparents, and siblings, the law applies to all the foregoing types of relationship but also “de facto” relationship
Which service members are covered?
Covered service members include any member of the U.S. Armed Forces, including the National Guard and Reserves, who is (1) undergoing medical treatment, recuperation or therapy or receiving outpatient treatment; or (2) on the US Armed Forces temporary disability retired list for a serious injury or illness that was incurred by the member in the line of duty in the US Armed Forces or a serious injury or illness that exist before the beginning of the member’s active duty and was aggravated by service.
The definition also covers a former member who is undergoing medical treatment, recuperation or therapy or receiving outpatient treatment that was incurred in the line of duty or existed before active duty and was aggravated by service in the line of duty and manifested before or after the member was discharged or released from service.
Notice Requirements
What notice must employers give to employees about the law?
Employers must post in a conspicuous place at each of its premises a notice provided by the Department of Labor in English and any primary language of 3 or more employees and is available from the Department.
Employers must also issue to each employee, no more than 30 days from the beginning date of the employee’s employment, certain written information provided by the Department about the employee’s leave rights.
If an employer fails to provide the required notices, it can be subject to a civil penalty of $50 per employee and $150 per employee for each subsequent violation. The employer has the burden of demonstrating compliance.
What notice must employees give of their need for leave?
An employee is required to give “reasonable notice” to his or her supervisor of the intent to use leave under the law unless there is an emergency, illness or other sudden necessity for leave.
If the employer fails to provide the required notice of leave rights to employees (discussed above) then “the employee’s obligation to provide notice under [the law] is waived.” Accordingly, if the employer fails to provide that notice to employees,it appears possible that an employee could go on leave without giving any notice to the employer at all.
Does the employer have any influence over the scheduling of leave?
Yes. The use of paid family leave must be scheduled to prevent undue hardship as reasonably determined by the employer.
Length of Leave
What amount of leave is available?
12 weeks of leave are available for family leave and medical leave. An eligible employee may not take more than 12 weeks, in the aggregate, of family leave and medical leave.
The law expressly “does not prevent” an employee from taking a medical leave and then a family leave when the medical leave is taken during pregnancy or recovery from childbirth and is supported by documentation from a health care provider.
Can leave be used intermittently?
Yes. Employees can use leave intermittently in increments of no less than 8 hours or on a reduced leave schedule otherwise agreed to by the employee and employer. Using leave intermittently does not reduce the total amount of leave that an employee is eligible to use.
Pay
How is the weekly benefit amount calculated?
During a family or medical leave, an eligible employee will receive the weekly benefit amount. The weekly benefit amount refers to the amount of wage replacement the state will pay to a covered individual on a weekly basis while the covered individual is on family or medical leave.
The weekly benefit amount is the sum of (1) the portion of the employee’s average weekly wage that is equal to or less than 50% of the average weekly wage, which is paid at a rate of 90%; and (2) the portion of the employee’s average weekly wage that is more than 50% of the state average weekly wage, which is replaced at a rate of 66%.
The average weekly wage will be calculated by taking the 1/52 of the “aggregate total wages paid in the State” for a covered individual, as reported by the employee on contribution reports for the “calendar year,” divide by the arithmetic mean of mid-month weekly covered employment reported on employer contribution reports for the calendar year.
Interestingly, and perhaps due to a drafting oversight, the statute’s definition of the average weekly wage does not actually refer to any base period – it says the average weekly wage is defined based on a “calendar year.” Nonetheless, the law defines (but does not use) the term “base period” as the four calendar quarters immediately preceding the first day of an employee’s benefit year. The benefit year is the 12-month period beginning on the first day of the calendar week immediately preceding the date on which benefits commence.
“Wages” include salary, wages, tips, commissions and “other compensation” designated by administrative rule.
Is there a cap on the weekly benefit?
Yes. The maximum weekly benefit amount is the state average weekly wage. By January 1 each year, the Maine Department of Labor must consider the recommendation of the authority to adjust the maximum weekly benefit amount. Adjustments will be effective on January 1. The authority must recommend adjusting the maximum weekly benefit amount in order to maintain the solvency of the fund.
Is there a waiting period for benefits?
Yes, for medical leave benefits only. Medical leave benefits are not payable during the first 7 calendar days of leave. An employee may use accrued sick or vacation pay or other paid leave provided under a collective bargaining agreement or employer policy during the first 7 days of the leave.
How are benefits prorated?
If a covered individual takes family leave or medical leave on an intermittent or reduced schedule, the benefit amount must be prorated as determined by the Department of Labor.
Will other amounts earned reduce the benefits?
Yes. The weekly benefit amount must be reduced by the amount of wages or wage replacement an eligible employee receives while on family or medical leave from (1) a government program (including unemployment, workers compensation, or under other state or federal temporary or permanent disability benefits law; or (2) any permanent disability policy or program of the employer.
Does the law allow an employer to supplement the employee’s benefits up to 100% of the employee’s regular pay?
Yes. The law states that it does not prohibit an employee from receiving employer-provided family and medical leave benefits and also benefits they are eligible to receive under the law.
Benefits
Does the law provide for reinstatement rights after the leave of absence?
Yes. Except for an employee who has not been employed for 120 days, an employee who exercises the right to family leave or medical leave under the law is entitled, upon return from leave, to be restored by the employer to the position held by the employee when the leave commenced or to be restored to a position with equivalent benefits, pay and other terms and conditions of employment.
The law does not say how the 120-day period is measured for determining whether an employee has reinstatement rights. It is not clear whether it is measured as of the day the employee begins to take leave or when the employee asks to be reinstated.
What benefits-continuation rights does the law provide?
During the family or medical leave, the employer will continue to provide for and contribute to the employee’s employment-related health insurance at the level and under the conditions coverage would have been provided if the employee had continued working continuously for the duration of leave.
The law also states that taking family leave or medical leave “may not affect an employee’s right to accrue” vacation time, sick time, bonuses, advancement, seniority, length of service credit or other employee benefits, plans or programs.
Typically, employers only allow employees to accrue benefits like vacation, sick time or bonuses when they are actually working and meeting certain thresholds or targets (e.g., accruing one hour of sick time for every 30 hours worked). It is unclear Maine’s law means that benefit accrual of such benefits must continue or if expectations for achieving benefit thresholds must be prorated or lowered during the time employees are on leave.
The benefits-continuation obligation does not apply to self-employed individuals taking leave or to a person who is no longer an employee.
Administration
Who will administer the law?
The law may be run by a state administrative agency but also gives the state the option of paying a third party administrator to operate the leave program. The law allows the Maine Department of Labor to conduct a competitive bidding process to select a third party for claims administration.
What are the application procedures?
The law requires the administrator of the state leave program to establish “reasonable procedures and forms” for filing claims for family leave benefits and medical leave benefits and to specify what documentation is necessary to support a claim for benefits.
An individual can file an application for benefits no earlier than 60 days before the anticipated start date of leave and no more than 90 days after the start date of leave. However, the administrator must “waive” the 90-day filing deadline for “good cause.”
Does the state need to notify the employer of the benefits claim?
The program administrator must notify the employer within 5 days of a claim being filed.
Are there confidentiality requirements?
Any medical or health information is treated as confidential and may not be disclosed except (1) with permission from the eligible employee who provided it or (2) as required by law.
What are the remedies available under the law?
The law has an anti-retaliation provision and prohibits interference with the exercise of rights under the law. The Department of Labor must take enforcement action against employers who violate the law. The law does not create a private right of action.
Can self-employed individuals elect coverage?
Yes, the law has provisions that allow self-employed individuals to elect coverage.
How is the program funded?
Through payroll premiums. Beginning in 2025, for each employee, employers must remit quarterly contribution reports and premiums. Beginning in 2025, the premium amount may not be more than a combined rate of 1.0% of wages.
Annually, from 2028 onward, no later than October 1 each year, the Department of Labor must set a premium for the coming calendar year to maintain the solvency of the leave fund.
Self-employed individuals who elect coverage must pay up to 50% of the required premium on their self-employment income.
Who pays the premiums?
If an employer has 15 or more employees, it may deduct up to 50% of the premium required for an employee from the employee’s wages and shall remit 100% of the combined premium contribution required.
If an employer has fewer than 15 employees, it may deduct up to 50% of the premium required for an employee from the employee’s wages and must remit 50% of the premium required.
Premiums are required up to the contribution and benefit base limit established annually by the federal Social Security Administration.
Are private plans allowed?
Yes. An employer with an approved private plan does not need to remit premiums.
An employer will need to apply to the Department of Labor for approval to meet its obligations under a private plan. The private lans must confer rights, protections, and benefits substantially equivalent to those provided to employees under the law.
Can employees appeal adverse decisions?
Yes. The Department of Labor is required to maintain a system for appeals of any denial of family leave benefits, including any procedures or appeals mechanisms established under chapter 13. In addition, after an individual has exhausted the appeals process before the Department of Labor, he or she must be allowed to have the decision reviewed by a court.
Interaction with other laws and rights
How does the law interact with collective bargaining agreements?
The law does not obviate any obligation to comply with its policy, law or collective bargaining agreement that provides greater rights to leave. The law also does not curtail any employee rights under a collective bargaining agreement or employment contract. An employer[s policy may not diminish an employee’s rights to benefits under the chapter. Any employee agreement to waive rights under the law is against public policy and void.
Can an employer require an employee to use sick or other time off while using leave under the PFL law?
No. The law says that it does not allow an employer to compel an employee to exhaust rights to any sick, vacation or personal time prior to or while taking leave under the law.
How does the law interact with the Family and Medical Leave Act (“FMLA”)?
Leave taken under Maine’s PFL law will run concurrently with leave taken under the FMLA. The law expressly recognizes that employees could take leave under Maine law even though the are not eligible for leave under the FMLA.
There are situations where an employee could “stack” FMLA leave against a leave covered under Maine’s PFL law. This is because the Maine law (1) provides leave for additional reasons that do not qualify for FMLA leave and (2) provides leave to employees before they could be eligible to use and exhaust FMLA leave.
