Mandatory Paid Sick Leave Bill Set For Public Hearing Before Maine Legislature

Thursday, January 07, 2010

On January 14, the Labor Committee of the 124th Maine Legislature will hold a public hearing on LD 1665, “An Act to Prevent the Spread of H1N1.”  No one should be misled by the bill’s title.  H1N1 never reached pandemic levels, and is now on the decline here and nationally.  This bill’s reach is much greater, as it mandates paid sick leave, no questions asked, for every employee in Maine.

LD 1665 applies to all employers, public and private, regardless of the number of employees.  Large employers, those with 25 or more employees, are required to provide one hour of paid sick leave for every 40 hours worked, up to a maximum of 52 hours, or about 6 ½ days per year.  Small employers, those with fewer than 25 employees, are required to provide one hour of paid sick leave for every 80 hours worked, up to a maximum of 26 hours, or about 3 ¼ days per year.  It also applies to all employees, whether full or part time.  While part-time employees would accrue paid leave at a slower rate, they would still be able to accrue and use the full amount of required leave.  The bill requires leave to be paid in one-hour increments, giving employers more record keeping responsibility.  It appears to require payment for unused leave when employees leave.

Not only is the leave requirement not limited to cases of H1N1, but it goes well beyond common notions of “sick leave.”  It requires paid leave for any absence “(A) resulting from a physical or mental illness, injury or medical condition of the employee… (B) obtaining professional medical diagnosis or care, or preventive medical care, for the employee… or (D) for the purpose of caring for a family member who has any of the conditions or needs for diagnosis or care described in paragraph A or B.”  Family member is very broadly defined, and includes grandparents, grandchildren, and brothers and sisters-in-law.  LD 1665 does not authorize employers to require any proof of the need to be absent for a listed reason, which means that employers who insist on proof of a legitimate basis for an absence may be considered to have “retaliated” and therefore be subject to DOL enforcement action (see below).

The bill requires paid leave in the case of a public health emergency, so that if an employer has to close its business for that reason, it must pay all of its employees for not working.  It also mandates paid leave for a broader range of reasons defined as “obtaining social or legal services pertaining to stalking, domestic violence or sexual abuse if the employee or the employee's family member is a victim of violence, assault, sexual assaults under Title 17-A, chapter 11, stalking or any act that would support an order for protection from abuse under Title 19-A, chapter 101.”

Employers who already provide the requisite amount of paid time off (PTO) to their employees would not be required to offer additional paid sick leave.  However, they would be required to allow employees to use the time required by the statute (52 hours for large employers and 26 hours for small employers) for any of the above listed reasons, and therefore will likely have to expand the reasons for which employees may use PTO.

The bill contains an anti-retaliation provision, prohibiting employers from discriminating against employees who request or take leave.  It directs the Maine Department of Labor to adopt rules implementing and enforcing the law, but does not describe the penalty, if any, for violating the anti-retaliation provision, or create a private right of action for an employee aggrieved by a violation of that provision.  It also allows carry-over from year to year of accrued, unused leave, and authorizes the DOL to adopt rules to address this benefit.

LD 1665 expressly makes the law applicable to all employees covered by collective bargaining agreements.  For employers who have recently negotiated agreements with less sick leave than is provided for by statute, particularly for multiple years, the effect is to increase costs substantially beyond those for which those employers have bargained.  Passage of the bill would incentivize union representatives to trade off benefits like paid sick leave to achieve other concessions from employers, only to get back those benefits through the legislature.

Employers will need to consider the effect of this new employer-funded entitlement on their overall approach to paid leave.  As noted in our previous alert, if it passes this bill likely will have a dramatic effect on those employers who are unable to afford paid sick time or who only offer paid sick time to full time employees.  Employers who offer paid vacation, but not paid sick time, will have to revamp their policies and either provide employees with additional paid time for the uses set forth in the statute (perhaps doing away with vacation time) or eliminate the “vacation” label and shift to a “paid time off” model. 

Employers who are concerned that this bill will negatively impact their operations, perhaps harming the very employees the bill aims to protect, should speak up, either by filing written testimony with the Labor Committee in advance of the January 14 hearing, by appearing at the hearing and giving oral testimony, or both. 

If you have any questions about whether or how you should make your concerns about LD 1665 known, please contact Jim Erwin or Katy Rand.