Maine DOL winds down listening sessions on paid time off law

The statewide sessions bring comments from businesses and workers
 
For the past two months, the Maine Department of Labor has been holding listening sessions around the state for the purposes of collecting information and comments from both business owners and employees concerning Maine’s new “paid time off” (PTO) law, which was passed by the legislature this past session and signed into law by the governor. The listening sessions are in advance of rulemaking that the department is tasked with undertaking in 2020. The rules will form the backbone of the law and fill in many of the details purposely left out in statute. The listening sessions and rulemaking are in anticipation of the law becoming “live” for any business with more than 10 employees in 2021.

As indicated earlier, the new law comes from legislation submitted this past session in the form of LD 369, An Act Authorizing Earned Employee Leave, sponsored by Sen. Rebecca Millett (D-Cumberland). The final version of the bill varied fairly dramatically from the original version, thanks to the work of both republicans, democrats, and the Governor herself. As enacted, the law will:

• Create a paid leave provision rather than a paid sick leave provision in the statute that governs Maine’s labor laws (Title 26);
  
• Apply to any employer that employs more than 10 employees in the regular course of business for more than 120 days;
  
• Provide that the employee would earn one hour of paid leave for every 40 hours worked, up to 40 hours in a year of employment;
  
• Not require an employer to allow leave time use until the employee has worked for 120 days - although accrual would begin upon employment start-up (the employer can choose to allow the leave time to be used earlier);
  
• Pay the employee the base rate of pay when using the leave;
  
• Requires the employee to make every effort to give timely notice regarding use of the leave;
  
• Allow the employer to offer a greater leave policy (i.e., PTO), and still be considered covered by the law;
  
• Authorize the Maine Department of Labor – no private rights of action – to enforce any provisions or penalties associated with violations of the law; and,
  
• Lastly, and most importantly for many businesses with multiple in-state locations, the law bars individual municipalities from enacting their own paid leave laws.

 
Since the bill went from more than 13 pages to a page and a half, much of the specific details concerning implementation were left to the Maine DOL to devise through the rulemaking process. In an effort of achieve statewide input, the department began in November 2019 to conduct listening sessions in which employers and employees were invited to attend and proved them with questions, comments, and input concerning the logistics of how the bill should work, and its impact on the workplace for both affected parties. To date, listening sessions have been held in Presque Isle, Bangor, Machias, Augusta, Farmington, Portland, Lewiston, Rockland and Springvale. In Augusta, one specific session has been held for employers, and one for employees.

The department has taken the position during these sessions that they will only answer questions concerning the new law that are clearly spelled out in statute. All other questions or comments have been put in queue for the rulemaking process, which is scheduled, according the department officials, to start in April with a public comment period of 30 days. Rulemaking is expected to be completed by the fall of 2020. Among the most frequently asked questions by employers at the sessions were:

• Will employers be required to cash out any unused leave upon separation?
  
• Will any unused leave roll over from year to year?
  
• What is the impact on seasonal and student employees?
  
• What is the impact on existing leave policies?
  
• What will constitute “reasonable notice” for use of the leave?
  
• How are per diem employees affected; are the covered?
  
• What is the base pay when an employee works a variable pay rate/job?
  
• Can the leave time be used incrementally?
  
• Can an employer discipline an employee for abuse of the leave?
  
• Can an employer deny use of the leave?
  
• Will employees be required to use, or lose the leave?
  
• Can employers simply up-front the leave time rather than track accrual?
  

 
These were just a few of the hundreds of questions that have come up at these sessions during the past two months. Peter Gore, executive vice president at the Maine State Chamber, has attended all but one of the statewide sessions and will continue to follow this extremely important issue for all Maine employers as the rulemaking process continues its progress. For additional information or questions, please contact Peter Gore by calling (207) 623-4568, ext. 107, or by emailing [email protected].