Majority of Labor committee approves expansion of Maine’s FMLA law

Emergency bill will add grandchildren to the list
 
      In a party line vote during Monday’s work session, a majority of the Labor and Housing committee voted to expand Maine’s Family Medical Leave (FMLA) statute, by adding grandchildren to the list of family members for which an employee can take FMLA leave.

      All eight Democrats on the committee voted “ought to pass” on LD 61, An Act to Include Grandparents under Maine’s Family Medical Leave Laws, sponsored by Rep. Paul Sterns (R-Guilford). The five Republicans on the committee voted “ought not to pass” due to the issues raised by the small business community.
      The Maine State Chamber of Commerce has expressed concerns and questions about the bill during a virtual public hearing held on February 3, 2021. In that hearing, Maine State Chamber Executive Vice President Peter Gore testified that employers in Maine operate under two different FMLA statutes. First, they must comply with the federal FMLA provisions. This law impacts employers with more than 50 employees and offers eligible employees up to 12 weeks of unpaid leave. Because Maine has so few employers with 50 or more employees, the legislature decided to enact a state version of FMLA. The Maine specific FMLA law covers employers with 15 or more employees and allows eligible employees to take up to 10 weeks of unpaid leave. To further complicate things, Maine’s FMLA statute allows leave to be taken in increments of less than one hour.
      This is not the first time this legislation has been debated in the Legislature. In fact, there have been numerous attempts to broaden the scope of Maine’s FMLA statute. In his testimony, Gore expressed the concern that, once you open the door to one new cohort, where and how do you draw the line? What prevents others from requesting the addition of step-grandparents, in-laws, or step in-laws – or other relatives not by blood, but marriage?  Furthermore, the use of this type of leave was in part envisioned by the passage of Maine’s Earned Paid Leave law in 2019.
      By including grandparents, the number of potential individuals that would be considered “covered” by LD 61 jumps by four individuals per employee. The care of grandchildren is really the purview of the parents of those children, parents who are already covered by the law. The majority report of the committee fails to address the issue of “double dipping” in a single household when it comes to use of the leave, despite the sponsor’s request that they do so.
      The proposed addition ratified by a majority of the committee will present problems for many small businesses.  The federal FMLA law does not provide coverage for this class of individuals, and only California and four other states extend FMLA coverage to these individuals. Furthermore, because Maine allows the use of FLMA leave in such small increments, passage of LD 61 will add to what is already an administrative nightmare for many small Maine employers.
      Human resources professionals around the state have indicated that ensuring proper utilization, administration, tracking, and monitoring the use of FMLA leave is one of the most burdensome employers must undertake, particularly due to its incremental use. It is important to note that these comments come from HR professionals, people charged in a company to ensure compliance and working for companies large enough to warrant their own HR departments.
      However, Maine’s FMLA also extends to our small businesses – those with 15 or more employees. The likelihood that these small businesses have an onsite HR department is slim. They are forced to ensure compliance with the existing law on their own.
      Finally, the administrative burden associated with expanding the law does not even take into account the issues that arise due to absenteeism in the workplace. The pandemic has placed particular problems on businesses of all sizes when it comes to staffing. Employers continue to report difficulties in finding workers in the current environment. While FMLA leave is important for many families, the work of the business must continue if the absent employee is to have a job to which they return - that means providing a service, making a widget, completing a task. If a business owner cannot find a replacement for the worker on leave, that means another worker must take up their work or it gets left undone. 
      The bill has only just been reported out of committee and, given the uncertainty of when the full Legislature might meet to debate the merits of the bill, it is unclear what will happen with it now. Most likely, it will be shelved until legislative leadership has a better idea when it might be safe and auspicious for them to meet. The Maine State Chamber will continue to follow this bill as it progresses through the legislative process. For questions or additional information, please contact Peter Gore by calling (207) 458-0490 or by emailing pgore@mainechamber.org.