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Maine Paid Family Medical Leave Program to be Funded by New Payroll Tax.

Maine Paid Family Medical Leave Program to be Funded by New Payroll Tax

August 2, 2023

Last month, Maine enacted one of the country’s most expansive paid family and medical leave programs.  The new program will provide eligible employees with up to 12 weeks of family and/or medical leave during the applicable twelve-month benefit period and no more than 16 weeks in the aggregate of both family and medical leave in that same benefit year.  The new program also allows intermittent leave, though in increments of not less than eight hours.  Smaller increments may be possible if the employer and employee both agree.

In addition to providing paid benefits for covered absences, the new program substantially expands the number of employees who will now qualify for job protected leave.  This new law does not replace Maine’s existing unpaid Family and Medical Leave, which provides for up to 10 weeks of unpaid leave in a two-year period for covered absences.  However, unlike the unpaid Maine Family and Medical Leave Act, which applies to employers who employ at least 15 employees at one location, this new law will apply to all Maine employers.  The new law will run concurrently with both the state and federal unpaid family and medical leave laws to the extent those other laws also apply to a covered absence.

Maine will begin assessing up to a 1 percent payroll tax, split equally between employers (with 15 or more employees) and their employees on January 1, 2025.  Smaller employers will not need to pay the employer’s share of the insurance premium and instead will only be required to deduct and remit to the state the employee’s 50% share of the premium.  Employees may start receiving benefits through the program in May 2026, subject to a determination by the state that the Paid Family and Medical Leave Insurance Fund is adequately funded.

Employees May be Eligible for Paid Benefits Immediately Upon Hire

Under the new law, a “covered individual” means a person who has earned at least 6 times the state average weekly wage (with any employer) during the four calendar quarters immediately preceding the first day of the employee’s application for family or medical leave benefits.  The new law applies, at least in part, to employees as of their first day of employment if they have earned sufficient wages in the prior four quarters.  The eligibility formula is somewhat similar to the formula the State uses to determine whether an employee has earned enough (with any employer) to be entitled to unemployment compensation benefits.

Although paid benefits are available to eligible employees on their first day of employment, job protected leave is not available to covered individuals until they have worked for the employer for at least 120 days.  This constitutes a dramatic expansion of job protected leave in Maine.  Under the current state and federal unpaid leave laws, job protected leave is only available to employees who have worked with covered employers for at least 12 months.

Absences Covered by Family Leave Expanded to Include Safe Leave

A covered individual is eligible for family leave for any of the following reasons:

1)  To bond with the covered individual’s child during the first 12 months after the child’s birth or the first 12 months after the placement of the child for adoption or foster care with the covered individual;

2)  To care for a family member with a serious health condition;

3)  To attend to a qualifying exigency related to active military duty service;

4)  To care for a family member of the covered individual who is a covered service member; and

5)  To take “safe leave” or any other reason that qualifies for leave under Maine’s unpaid family medical leave law.  A safe leave means any leave taken because the covered individual or the covered individual’s family member is a victim of violence, assault, sexual assault, stalking or any act that would support an order for protection.

Medical Leave for Serious Health Condition

A covered individual with a serious health condition that makes the individual unable to work is eligible for medical leave.  A serious health condition means:  an illness, injury, impairment, pregnancy, recovery from childbirth or physical, mental or psychological condition that involves inpatient care in a hospital, hospice or residential medical center or continuing treatment by a health care provider.

Broad Definition of Family Member to Include Individuals with Whom Covered Employees or Their Spouse/Domestic Partner Have “Special Bond” or “De Facto” Relationship

A family member means with respect to a covered individual or spouse or domestic partner of the covered individual:

1)  Regardless of age, a child, including foster and stepchild or any child to whom the covered employee or that employee’s spouse or domestic partner stands in the place of a parent;

2)  A parent including a “de facto” parent or person who stood in the place of a parent when the covered individual or that individual’s spouse or domestic partner was a minor child;

3)  A grandparent, including stepgrandparent or “de facto” grandparent;

4)  A grandchild, including stepgrandchild or “de facto” grandchild;

5)  A sibling including a “de facto” sibling;

6)  A spouse or domestic partner of a covered individual; or

7)  As shown by the covered individual, any other 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.

Covered Individual Entitled to Weekly Benefit Up to 90% of Weekly Wage

The weekly benefit amount formula is somewhat convoluted.  The benefit will be capped at the state’s average weekly wage and paid as follows:

  • That portion of the covered individual’s average weekly wage that is equal or less than 50% of the state average weekly wage must be replaced at a rate of 90%; and
  • That portion of the covered individual’s average weekly wage that is more than 50% of the state average weekly wage must be replaced at a rate of 66% up to the maximum weekly benefit.  The maximum weekly benefit is the state average weekly wage.

Employers Can Offer, with State Approval, a Private Plan in Lieu of Participating in State Run Program

An employer may apply to the administrator for approval to operate a private plan that confers at least the same rights, protections and benefits provided to employees under the new law.  If the private plan is a form of self-insurance, the employer will be required to furnish a bond to the state.

Application of Law to Private Sector Employees Who are Part of a Bargaining Unit is Subject to Court Challenge

Only public sector employers that are party to a collective bargaining agreement in effect as of the effective date of the law may delay compliance with the law until the existing collective bargaining agreement expires.  Private sector employers covered by a collective bargaining agreement are, subject to any court challenge, not eligible to delay compliance with the new law except that the law in no way curtails any rights, privileges or remedies provided in a collective bargaining agreement that are more generous than provided by this new law.  We expect that there will be court challenges to the constitutionality of this law as it applies to private sector bargaining units.

The Maine Department of Labor must provide further guidance through new regulations scheduled to be issued no later than January 1, 2025.  We will continue to monitor developments and provide updates.

If you have questions, please contact:

Peter Bennett (pbennett@thebennettlawfirm.com) or
Rick Finberg (rfinberg@thebennettlawfirm.com)

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