We have two laws that apply to Maine workers: a federal law and
a state law. We will explain the basics of each one here. Generally, the Maine
law covers more people. But the federal law gives better coverage, if it applies
to you. If you have more questions, call your union or the Wage and Hour
Division of the:
Maine Department of Labor: 207-624-6400 TTY 1-800-794-1110, or
U.S. Department of Labor: 207-780-334 or 207-945-0330.
NOTE: Maine also has a
Maine Family Care Act
which allows eligible Maine workers to use up to 40 hours of earned paid leave to care for sick family
members. This Act is not covered here. Maine Equal Justice posts a nice
summary of the Maine Family Care Act.
Special thanks to Howard Reben of Reben,
Benjamin and March
for his help with review and editing.
The Maine Family Medical Leave
| Who does the Maine law cover? |
The Maine law covers people who work for:
- An employer with 15 or more workers at one location,
- Any state agency, or
- Any city, town or municipal agency that has 25 or more workers
You must have worked for the same employer for 12 months in a
row before taking this leave.
You can take the leave if:
- You, your child, parent, spouse, or domestic partner has a serious illness
- You are giving birth to a child (covers both fathers and mothers, including domestic partners)
- You or your domestic partner is adopting a child who is 16 or younger
- Your child, parent, spouse or domestic partner dies, or incurs a serious health condition,
while on active military duty
- You are donating an organ for transplant
The Maine law defines "serious illness" as one that
requires a hospital stay or continuing treatment.
"Domestic partner" means a partner who:
- you have lived with for at least 12 months
- is not legally married to another person
- is your sole partner and expects to remain so, and
- shares responsibility for your "common welfare"
| Do I get paid during the leave? |
The law does not require paid leave. If your employer gives paid
sick leave, but for less than the 10 weeks, then you can add on this unpaid
leave, up to a total of 10 weeks.
You can take up to 10 work weeks of leave in any two year period.
| Do I have to take it all at the same time? |
That depends on your purpose for taking the leave. Child birth and adoption leaves must be taken
at one time, unless your employer agrees otherwise.
Leaves due to illness can be taken "intermittently or on a reduced leave schedule."
This means that you can take the time in smaller amounts (partial days or partial weeks),
according to what is "medically necessary." You cannot be penalized for taking shorter leaves;
you still have a total of 10 weeks, if you need it.
If you need this type of partial leave schedule for a planned medical treatment,
your employer can transfer you temporarily to another position that "better accommodates recurring
periods of leave." However, that position must have the same pay and benefits as your usual job.
| What about other benefits, like health insurance? |
Your employer must continue your benefits while you are on
leave. But he can make you pay for them.
| Do I have to give notice
that I am planning to take the leave? |
Yes. You must give at least 30 days notice before taking the
leave. You must tell your employer the date you plan to start and end the leave.
But you don't have to give this notice if you can't because of a medical
emergency.
| Can I get my job back
when I return to work? |
Yes. Your employer must give you the same job, or an
"equivalent " job. This means a job with the same pay and benefits,
seniority status, and working conditions. There is a narrow exception to this
rule, if your employer can prove that other things changed while you were gone,
causing changes in the work force that have nothing to do with your leave.
| What if my employer doesn't
agree that I need the leave, or thinks I should come back to work
sooner? |
Your employer can require a doctor's statement to
verify the amount of time you need. If you don't use traditional care
because of your religious beliefs, you can get a statement made out by
an "accredited practitioner" of the healing methods you use.
| What if my contract or collective bargaining agreement has better leave? |
The purpose of the law is to give some rights to workers who do
not have adequate leave time already. You cannot bargain away what is in the
law. But you can bargain for better terms.
It is illegal for your employer to penalize you in any way from
using this law to take the leave time you need.
| What if my employer violates this law? |
Talk to a lawyer. You have the right to enforce this law in
court. The court may order your employer to:
- stop violating the law
- do what is fair; for example, give you your job back
- pay you the wages, salary, benefits or other compensation you may have lost, due to the violation
- pay you $100 "for each day the violation continued"
- pay you double the above amounts, if you prove that the violation was "willful"
- pay your attorney's fees and court costs.
Note: In 2005 the legislature brought these court remedies more in line with those allowed under the
federal law.
You may be able to reach a favorable settlement without going to
court.
The Federal Family and Medical Leave Act
This law applies to workers at larger companies. Your workplace
must have at least 50 workers, or that many workers within 75 miles.
| When can I take the leave? |
These rules are also different from the state law. You must have
worked for at least 1,250 hours during the past 12 months. Also, you must have
worked for this employer for at least 12 months. These months do not have to be
all in a row - just 12 months total, at any time.
You can take leave:
- For the birth of a child and to care for the newborn
- For adopting a child or getting a foster care child
- To care for your spouse, child, or parent who has a serious illness
- Because of a serious illness that makes you unable to do your job
You can take up to 12 weeks during a 12 month period. Your
employer may count the 12 months in one of several ways. You do not have to use
up the 12 weeks all at one time.
Note: Some special rules apply to "instructional
employees" of elementary and secondary school employees who want to take
intermittent leave, end-of-the-year leave, or a reduced schedule. Contact your
union or a lawyer.
| Do I get paid during the leave? |
No. As with the state leave, employers are not required to give
paid leave. If you have paid leave rights in your work contract, these can be
set off against the 12 week unpaid leave.
| What about other benefits, like health insurance? |
This rule is better than the state rule. Your employer must
continue health benefits on the same terms as if you were working. Your employer
must treat other benefits (such as holiday pay) in the same way as he treats
other employees on other types of leave.
| Do I have to give notice that I am planning to take the leave? |
Yes. As with the state law, you must give at least 30 days
notice before taking the leave. But you don't have to give this notice if you
can't because of a medical emergency. In that case, you must give notice
"as soon as practicable." This normally means within one or two
working days.
| Can I get my job back when I return to work? |
Yes. Your employer must give you the same job, or an
"equivalent " job. This means a job with the same pay and benefits,
seniority status, and working conditions. There is a narrow exception to this
rule, if your employer can prove that other things changed while you were gone,
causing changes in the work force that have nothing to do with your leave (such
as mass lay-offs).
Note: Certain "key" salaried employees, who are in
the upper ranges of the employer's pay scale, have less clear rights to
continued employment. Get legal advice.
| What if my employer doesn't agree that I need the leave, or
thinks I should come back to work sooner? |
Your employer can require "certification" of your
condition from a health care provider. In cases where you have given the
required 30 day advance notice, you should provide this medical statement to
your employer before you go on leave. In emergency situations, you should try to
provide the medical certification within 15 days of your employer's request.
| What if my contract or collective bargaining agreement has
better leave? |
The purpose of the law is to give some rights to workers who do
not have adequate leave time already. You cannot bargain away what is in the
law. But you can bargain for better terms.
It is illegal for your employer to penalize you in any way from
using this law to take the leave time you need.
| If I qualify under both the state and federal laws, can I add
the leaves together to take the maximum amount of time under both laws? |
No. Any leave time you take under the state law is offset
against your federal leave time.
Where there is conflict between state law and federal law, or
between the law and your employer's policy, you can use the most generous
rule.
| What if my employer violates this law? |
Talk to a lawyer. You have the right to enforce this law in
court. The court can order your employer to:
- Pay you lost wages and other benefits
- Reimburse you for other expenses
- Pay you $100 per day for each day the violation continues
- Pay you interest on the judgment
- Pay your attorney's fees and court costs.
You can also file a complaint with the U.S. Department of Labor,
Wage and Hour Division: 207-780-334 or 207-945-0330. This agency also has the
power to enforce the law and to fine an employer who violates it.
The absolute deadline for filing either type of complaint is 2
years from the date of the violation, or 3 years from the date of a willful
violation.
