March 26, 2020 4:14 PM
After months of gathering comments and input from around the state, the Maine Department of Labor (DOL) last evening released draft rules that will help determine the implementation and operation of Maine’s “Paid Time Off” (PTO) law, passed by the Legislature in 2019. The PTO law sprung out of LD 369, An Act Authorizing Earned Employee Leave, which was enacted after numerous negotiations between Gov. Mills’ administration, legislators, and the business community. Originally more than 10 pages long and focused on providing full- and part- time workers with paid sick leave, the bill was re-drafted by the governor to instead provide PTO to the same group of employees. The re-drafted bill was less than a page-and-a-half long, and while it laid out the basics of the leave parameters, it left much of the specifics to rulemaking, which would be conducted under the direction of the Maine DOL.
The law requires any Maine business with more than 10 employees to provide their full- and part-time workers with up to 40 hours of paid time off. Workers accrue one hour of paid leave for every 40 hours worked to a max of 40 hours. They must be employed by the business for 120 days to be eligible to take the leave. The leave can be used for any reason, but employees are supposed to give reasonable notice of intent to take the time.
As part of the rulemaking process, the department conducted a series of “listening” sessions around the state. The department began this process in late October 2019 and held nearly a dozen meetings from as far north as Presque Isle, to Machias, Portland and Sanford, to name a few. While the comment sessions were for both employers and employees, they were predominantly attended by small businesses that were concerned with the mechanics of implementation, costs, and complexity.
The DOL wound down its meetings in December 2019 and indicated it hoped to have draft rules finalized by mid-April, so yesterday’s publication of the draft rules is somewhat surprising. While the Maine State Chamber has not had a chance to delve into the draft in any depth, which continue to be surprisingly short on specifics given the sheer volume of comments received at each listening session. In fact, when compiled, the total number of questions and clarifications requested by small businesses generated nearly a dozen, single-spaced pages. The link to the draft rules can be found here.
Again, a quick review seems to indicate that employers received some of what they were looking for in terms their concerns over implementation, but not in other areas. For example, the rules indicated that if you cash out any other kind of leave benefit upon separation, you must also do so with any unused PTO time. This runs contrary to discussions in the Labor and Housing committee last session and creates a significate financial liability for impacted employers, particularly small businesses. When considering this particular requirement, it’s important to remember that, while many employers provide paid benefits to their full-time employees, they don’t provide it to part-time workers. Some small businesses don’t currently provide any paid leave. Therefore, some businesses are going to incur “sticker shock” with this requirement.
In the press statement released last evening, the department intends to conduct a virtual public hearing on the rules on April 15, 2020, from 5:00 to 7:00 p.m. Given the current need for social distancing as a result of the COVID-19 pandemic, this isn’t a surprising development. Individuals will have up to three minutes to deliver comments at that time. A link detailing how to participate in the virtual hearing can be found here.
If businesses want to provide comment but not do so virtually, written comments can be submitted electronically through an online submission form. https://www.maine.gov/labor/proposedrulemaking/ Public comments may be sent by email to firstname.lastname@example.org; please note that it is about Earned Paid Leave Rules in the subject line. Mailed correspondence can be sent to Maine Department of Labor at 54 State House Station, Augusta, Maine 04330-0054. All submissions require your full name as well as a place of residence. The public comment period remains open until 5:00 p.m. on Monday, April 27, 2020.
The Maine State Chamber has closely followed the development of these rules since their enactment last year. We attended the majority of the statewide listening sessions and have met with DOL staff since then. While we intend to have a detailed breakdown of both the good and the bad in the draft rules in the coming days, we are concerned with their brevity given all the questions and comments provided. Employers were looking for clarity and certainty – especially given the incredibly difficult times in which they currently find themselves operating, and certainly into the foreseeable future. That isn’t clear in this version. And whether the public comment period adds to that certainly or not is like many things today – unclear.
The Maine State Chamber will be providing comment on the draft rules both in writing and virtually. For more information or questions, please contact Peter Gore by calling (207) 458-0490 or emailing email@example.com.