September 23, 2005

RE: Employer Alert: Maine Enacts Family Illness Leave Statute

by Peter Bennett

We write to alert you to Maine’s new Family Sick Leave law which applies to all employers with 25 or more employees and takes effect on September 17, 2005.

We are recommending that any covered employer adopt a written family sick leave policy because doing so will contain the impact this law will have.

Family sick leave is available for an employee to care for an “ill” parent, spouse or child provided the employer provides one or more forms of paid leave to its employees whether it be sick days, personal days, vacation, earned benefit time or other similar pay for time not worked. The statute specifically exempts short term and long term disability as well as catastrophic leave. By policy, the employer may limit the use of paid leave for family illness to 40 hours per twelve month period. In addition, by policy, the employer can control the order in which competing types of paid leave are consumed in cases of family illness. Without a written policy, there is no limit on the hours to be taken (other than whatever paid time off the employee has earned) and the employee is free to elect which type of paid leave to take for each day of illness.

An employer is allowed to require verification of the illness in the same manner as the employer requires verification from a sick employee. However, please keep in mind that under another Maine statute, an employer may not require an employee to bear the medical cost of an examination that the employer requires.

Remarkably, the law does not define its key term: illness. We expect there to be wide disagreement over what qualifies for this type of leave and what does not. Unfortunately, the Legislature failed to recognize and address this central problem.

The statute also is silent on the subject of unpaid family leave and whether an employer is required to provide unpaid family leave as well. That said, unpaid leave does not appear to be the Legislature’s intent and rather appears to be the result of poor drafting of the legislation. Hopefully, the Department of Labor will clarify and settle this issue when it finally issues its implementing rules later this year.

Again, every employer should adopt a written policy in order to contain the amount of leave available under this new law and to limit the opportunities for abuse. We are working with a number of clients in creating these policies and would welcome the opportunity to work with you as well.