The Maine Department of Labor announced proposed rulemaking on May 20, 2024, to implement the upcoming Maine Paid Family and Medical Leave Program.

Maine DOL’s rulemaking has been expected following the Maine Legislature’s passage of the new law in 2023. Employees can begin receiving paid leave benefits effective on May 1, 2026, and employer contributions to the plan funding those benefits begins on January 1, 2025. The proposed rules are not final. Public comment will be open through July 8, 2024, and can be submitted here.

The proposed rules provide greater detail as to how the Maine DOL plans to implement and enforce the new program. The program allows Maine employees up to 12 weeks of family and medical leave benefits over a one-year period.

Covered Employees

Under the proposed rules, covered employees will be defined as: (1) employees who earn wages paid in Maine at least six times the state average weekly wage during the first four of the last five completed calendar quarters immediately preceding the first day of an individual’s benefit year, and who are not otherwise excluded; or (2) individuals who voluntarily elect coverage. Employees may utilize these benefits by taking continuous leave, intermittent leave, or reduced schedule leave. Both intermittent and reduced schedule leave will be prorated against the full 12-week leave allotment under the law but leave may not be taken in increments of less than a workday without the employer’s agreement.

Applications for benefits

In order to receive benefits, the proposed rules explain that a covered employee must submit an application for benefits no more than 60 days before nor 90 days after the start date of the leave. Absent an emergency, illness, or other sudden necessity for taking leave, an employee must give reasonable notice to the employee’s supervisor of the employee’s intent to use leave, generally 30 days before the leave begins. If the request for leave is not foreseeable due to emergency, illness, or other sudden necessity, an employee must make a good faith effort to provide written notice to the employer of the employee’s intent to use leave as soon as is feasible under the circumstances. The notice must state the reason for the leave being requested (family, medical, safe leave, or qualifying exigency); the type of leave needed (continuous, reduced schedule, or intermittent leave); actual or anticipated timing and duration of leave; any other relevant details regarding the employee’s need to take leave.

Undue hardship

While employees are required to schedule leave, the proposed rules explain that the employer bears the burden to prove the undue hardship. “Undue hardship,” as defined in the proposed rules, means a significant impact on the operation of the business or significant expenses, considering the financial resources of the employer, the size of the workforce, and the nature of the industry. An employer’s determination of undue hardship will not be considered reasonable unless the following are established: (1) the employer provided a written explanation of the undue hardship to the employee; (2) the employee retains the ability to take leave within a reasonable time frame relative to the proposed schedule; and (3) the employer has made a good faith attempt to work out a schedule for such leave that meets the employee’s needs without unduly disrupting the employer’s operations, subject to the approval of the employee’s health care provider. Employers and employees will be entitled to appeal the administrator’s decisions to a DOL hearing officer and, following this appeal, may seek review in the Superior Court.

Job restoration

Employees employed for at least 120 consecutive days are generally entitled to job restoration upon return from leave. Employers must return the employee to the position the employee previously held or to an equivalent position with equivalent benefits, pay, and other terms and conditions of employment.

Applications for benefits

Employees can submit applications for paid family and medical leave benefits online once benefits become available. The plan administrator will notify employers within five business days of an application by an employee. Employers will have 10 days to submit documentation or information that it wishes the administrator to consider.

Employer premiums

Benefits will be financed by a mandatory “premium” based on employee wages of up to 1%, to be split evenly between employee and employer, with each bearing a maximum burden of 0.5% of weekly wages as a premium. Maine employers with fewer than 15 employees will not be subject to the payment of the employer’s portion of the premium, though they will still be obliged to collect and remit the employee portion. While coverage is delayed until the May 1, 2026, start date, Maine employers and employees will begin paying the 1% premium beginning on January 1, 2025. Employer premium payments and contribution reports will be due on or before the last day of the month following the close of the quarter. DOL will provide employers forms for submission. Employer premiums will be required up to the contribution and benefit base limit established annually by the federal Social Security Administration for purposes of the federal Old-Age, Survivors, and Disability Insurance program limits pursuant to 42 U.S.C. § 430. An employer’s size for purposes of calculating their premium liability for each year will be calculated based upon the number of employees employed within Maine on October 1 of the previous year.

Private plans

The proposed rules explain that employers will be eligible to substitute both fully insured and self-insured plans for participation in the DOL-administered public program. DOL will process approvals for substitution of private plans and will be valid for three years. Applications for substitution of a private plan will begin to be accepted on January 1, 2026. DOL will provide forms for submission of this application. Approved plans must be substantially equivalent to the protections and benefits available under the public plan.

If you have questions about Maine’s Paid Family and Medical Leave Program or the proposed rules, please reach out to a Jackson Lewis attorney.

Under Minnesota’s Paid Leave Law (PLL) that goes into effect in January 2026, employers must provide covered employees up to 20 weeks of leave to care for themselves and their family members with paid leave benefits available through the Minnesota Paid Leave Program.

Although the PLL was passed on May 25, 2023, employees will not be able to access paid leave benefits until January 1, 2026. In the interim, legislators and agency personnel are working to answer questions and fill information gaps.

Three important recent developments concerning the PLL include: (1) new guidance from Minnesota’s Department of Employment and Economic Development (MN DEED) for employees and employers, (2) amendments to the PLL signed into law by Governor Tim Walz on May 24, 2024, which allow for increases to payroll taxes to implement the PLL and (3) amendments which provide a comprehensive scheme for appeals and calculating benefit amounts, among other changes.

Learn more here.

Minnesota’s legislature was busy providing new rules and obligations for employers. In addition to the changes in the Minnesota Human Rights Act (MHRA), Earned Sick and Safe Time (ESST), and Paid Family and Medical Leave, (which we discuss in separate articles), the Minnesota legislature also made slight adjustments to the state’s pregnancy accommodation law and the pregnancy and prenatal leave law. More information is available here.

On April 4, 2024, Governor Tina Kotek signed HB 4156 to modernize and expand protections under Oregon’s anti-stalking laws.  The new law criminalizes newer forms of threatening and predatory conduct which have emerged with the technological advances of recent decades.  The new law also impacts Oregon employers by expanding employees’ access to paid and unpaid safe leave benefits.

It has long been a crime in Oregon to cause someone reasonable apprehension about their personal safety by knowingly alarming or coercing that person through repeated and unwanted contact.  The term “repeated and unwanted contact” was generally defined to include only instances of direct physical presence (e.g., following a victim or lying in wait outside their homes and schools), or unwanted communications.  That definition reflected traditional concepts of stalking behavior but failed to address newer forms of bad conduct, including, for example, forms of online harassment and the theft or misappropriation of a victim’s personal information.    

House Bill 4156 aims to strengthen Oregon’s anti-stalking protections against these newer forms of criminal conduct.  Specifically, the new law amends the definition of repeated or unwanted “contact” to include misappropriating a victim’s personal identification; disclosing intimate or sexual images of someone without their consent (so-called “revenge porn”); using electronic means to monitor or interfere with a victim’s communications or activities; or causing others to harass, humiliate or injure the victim by disclosing names, images or personal information (aka “doxxing”).

Oregon employers should know that the modernization of Oregon’s anti-stalking laws indirectly expands already-existing obligations to provide their employees with certain safe leave benefits.  Specifically, under ORS 659A.272, Oregon employers with six or more employees must allow their employees “reasonable leave from employment” for purposes such as seeking legal or law enforcement assistance to ensure their health and safety from stalkers, obtaining medical treatment or recovering from stalking-related injuries, and receiving counseling from a licensed mental health professional.    

Similarly, under the new Paid Leave Oregon program, employers with one or more employees must also allow up to 12 weeks of paid leave to eligible employees for specified purposes, including safe leave for those victimized by stalking crimes.  Beginning July 1, 2024, these paid leave protections will supplant prior unpaid leave benefits which for years had been available under the Oregon Family and Medical Leave Act (“OFLA”).

If you have questions about your leave of absence policies or whether an individual employee’s absence is legally protected, please contact your Jackson Lewis lawyer. Jackson Lewis also offers a leave law map database that provides subscribers a detailed explanation of state and local leave laws around the country. The Leave & Accommodation Suite is developed and updated continually by our Disability, Leave & Health Management attorneys.

Minnesota Governor Tim Walz recently signed a bill significantly amending the Minnesota Human Rights Act (MHRA). Among other things, the legislation amended the definition of “disability” under state anti-discrimination law. The MHRA was also amended relating to the use of service animals. For more information about these developments in Minnesota, please review our full report here.

On May 9, 2024, Connecticut enacted Public Act 24-5, which expands the circumstances under which employees can receive benefits under Connecticut’s Paid Leave Insurance Program. The Connecticut Paid Leave Insurance Program provides wage replacement benefits to employees who require leave from work for certain covered reasons, with employees contributing to the trust for the program through a regular payroll deduction. Under Public Act 24-5, the covered reasons for receiving benefits under the program has been expanded to include leave benefits for victims of sexual assault. Previously, the program provided paid leave benefits to employees who take leave covered by the Connecticut Family and Medical Leave Act and to employees who are victims of family violence. Effective October 1, 2024, Public Act 24-5 amends the General Statutes to permit employees who are victims of sexual assault to take leave from work for covered reasons and to receive paid benefits during that leave under the Connecticut Paid Leave statute.

The Act also amended the Connecticut Paid Leave statute to permit employees to receive benefits concurrently with compensation received from the victim compensation program administered by the Office of Victim Services within the Judicial Department, provided the total compensation received by the covered employee during the covered employee’s period of leave shall not exceed such covered employee’s regular rate of compensation.

Employers with questions on these developments or other recent changes in Connecticut leave laws, including the recently expanded paid sick leave law, should contact a Jackson Lewis attorney.

To help employers navigate these new compliance obligation, Jackson Lewis P.C. will host a complimentary webinar on June 26. Please register here.

The U.S. Department of Labor’s Wage and Hour Division (WHD) has published a Field Assistance Bulletin (FAB) on the application of federal labor standards to employers’ use of artificial intelligence (AI) and other automated systems in the workplace. Bulletins provide guidance to field staff on enforcing the federal statutes administered by the WHD.

FAB No. 2024-1 emphasizes that statutory protections apply as usual, irrespective of the new tools and systems employers are using. However, the use of AI may pose some compliance challenges. “Regardless of the exact AI or other technologies used, the principles described here provide guidance for evaluating how to comply with the law,” the FAB states.

In addition to addressing the potential implications of AI in properly tracking hours worked and calculating wages owed under the Fair Labor Standards Act (FLSA), the FAB addresses the potential impact of AI on compliance with the FLSA’s protections for nursing employees. The FAB also provides detailed guidance on the challenges that may arise with the use of AI and compliance with the Family and Medical Leave Act (FMLA).

Learn more here.

The Connecticut legislature has approved a major revision to Connecticut’s state statute mandating paid sick leave, broadly expanding coverage of the statute over the next several years to nearly every employer and employee in the state.

The Connecticut Senate approved the measure on May 6, 2024, which had previously passed in the House on April 24, 2024. Governor Ned Lamont is expected to sign the legislation into law soon.

Learn more here.

Maryland Governor Wes Moore has signed a bill that further delays implementation of the Family and Medical Leave Insurance Program (also known as the Time to Care Act).

In 2022, the Maryland General Assembly passed the Family and Medical Leave Insurance Program (“Program”). Under the Program, Maryland workers will receive up to 12 weeks of paid family and medical leave through a state fund financed by employee and employer contributions. Contributions from employers and employees were originally set to begin on Oct. 1, 2023, and covered employees were to receive benefits starting on Jan. 1, 2025.

Last year, the General Assembly passed an amendment to the law that, among other things, delayed collection of contributions and benefit payments for a year. Jackson Lewis detailed that amendment’s notable changes. During the latest legislative session, lawmakers passed SB485, making additional modifications and setting new dates for contributions and benefits under the Program.

Delayed Start Dates

Contributions will begin on July 1, 2025, and covered employees will begin receiving benefits on July 1, 2026. The secretary of labor will set the rate of contribution by Feb. 1, 2025. The secretary of labor had set the rate of .90% for employers with at least 15 employees. However, this rate is likely to change due to the updated law. Once set by the secretary of labor, the rate will be in effect from July 1, 2025, to June 30, 2026.

Minor Changes Affecting Employers

There are two additional changes affecting employers and their compliance with the Program. First, the definition of “wages” now follows the Maryland Unemployment Insurance’s definition. Employers will not have to calculate two different sets of wages for the two programs. Second, employers who opt to use a private plan in lieu of the Program will have to pay application and renewal fees. The Department of Labor will set the applicable fee arrangement.

The secretary of labor issued draft regulations implementing the Program. Final regulations are expected to further clarify the law for employers.

Jackson Lewis attorneys are available to answer your questions about changes to the law and how they affect your existing leave and benefit policies.