The Maine Legislature has enacted two laws which expand the obligations of covered employers under Maine's Family Medical Leave Requirements ("FMLR") law. One amendment provides for intermittent leave as required under the federal Family Medical Leave Act. Because the Maine FMLR law generally applies to employers with fewer employees than employers covered under the FMLA, this amendment increases the number of Maine employers who will be obligated to provide intermittent or reduced family and/or medical leave. The second amendment adds domestic partners to the list of family members for whom employees may use family medical leave. This provision has no counterpart under the FMLA, and therefore requires Maine employers to provide leave under circumstances that would not trigger leave rights under the federal FMLA.
Intermittent Leave
As previously enacted, Maine's FMLR law required employers to permit eligible employees to take up to "10 consecutive work weeks of family medical leave in any 2 years." It was silent on the issue of intermittent leave. This led to interpretations that employers need not provide intermittent leave to employees whose eligibility was based exclusively on the State law. The recent change deletes the word "consecutive" from the clause defining the amount of the leave entitlement, and adds language that explicitly requires covered employers to permit employees to take intermittent or reduced leave for their own serious health condition, to care for a family member with a serious health condition, and for the employee's donation of an organ for a human organ transplant. As with the federal FMLA, intermittent leave for the birth or adoption of a child need only be provided if the employer agrees.
Leave for Domestic Partners
The domestic partner amendment expands the definition of "family medical leave." It adds the following to the list of events that trigger an employee's right to family medical leave:
- the birth of a domestic partner's child;
- the adoption of a child by the employee's domestic partner; and
- The serious health condition of the domestic partner and/or that person's child.
- The amendment also defines "domestic partner" to mean the partner of an employee who meets the following criteria:
- Is a mentally competent adult;
- Has been legally domiciled with the employee for at least 12 months;
- Is not legally married to or legally separated from another individual;
- Is the sole partner of the employee and expects to remain so;
- Is not a sibling of the employee; and
- Is jointly responsible with the employee for each other's common welfare as evidenced by joint living arrangements, joint financial arrangements or joint ownership of real or personal property.
What is the Potential Impact on Maine Employers?
These changes, which will become effective in September of this year, will impact all Maine employers who are currently covered by the State law. The following are among the potential consequences to covered Maine employers:
- Small employers with only 15 or more employees at a work site will have to provide and administer intermittent or reduced leave to eligible employees.
- Per diem and other employees who work reduced or part time schedules (e.g., less than the annual 1250 hour threshold that exists under the FMLA) will now be eligible for intermittent or further reduced leave.
- Because leave to care for a domestic partner or that individual's child is not FMLA-qualifying leave, employers may not be able to count it against an employee's entitlement under the federal law. Thus, a Maine employee could take 10 weeks of leave under state law to care for a domestic partner with a serious health condition, and be eligible in the same year for an additional 12 weeks of leave for events that trigger the protections of the federal law.