It is a legal requirement for all employers to post Maine’s Regulation of Employment poster in all workplaces. This poster was recently updated to include information on Maine’s Earned Paid Leave law. To download this updated version from our website, please click the link below.
Applies to employers with more than 10 employees in Maine for more than 120 days in any calendar year. (See definition of Employer in 26 M.R.S. sub-section 1043 sec. 9).
Employees accrue 1 hour of Earned Paid Leave for every 40 hours worked, up to 40 hours in a defined year.
Employees can use their accrued Earned Paid Leave for any reason such as an emergency, illness, sudden necessity, planned vacation, etc.
Employees can use up to 40 hours of leave in any defined year.
Includes all employees: full-time, part-time, temporary, per diem, etc.
Employees can bargain for, or employers can offer, a benefit of this nature that exceeds this standard.
Employees can carry over up to 40 hours from one defined year to the next.
Employees may be required to give up to 4 weeks' advance notice to use earned paid leave for any reason other than an emergency, illness, or sudden necessity.
Employees are required to notify employers as soon as practicable if the use of Earned Paid Leave is for an emergency, illness, or sudden necessity.
Employees covered by collective bargaining agreements (CBAs) as of 1/1/2021 are excluded until the CBA expires. Contracts negotiated after this date must include this benefit at a minimum.
Employers may use their discretion to frontload Earned Paid Leave at the beginning of the year.
Salaried employees that are deemed “exempt” are presumed to work 40 hours per week unless there is an actual record of time worked.
Employers can apply a 120-day wait period before new employees can use their accrued Earned Paid Leave.
At the separation of employment, employers that allow employees to use Earned Paid Leave before it is accrued may withhold from the last paycheck any amount that the employee had not yet accrued.
The Unemployment Insurance Commission has made determinations that certain industries are seasonal.
If the employer is within any such industry and the employer has submitted the required report to the Bureau of Unemployment Compensation setting forth the seasonal period for the applicable year, then the employees working only within that seasonal period will be exempt from coverage for Earned Paid Leave.
The Bureau has compiled lists of frequently asked questions and answers from the Earned Paid Leave listening sessions held in the Fall of 2019, public comments received on the proposed Rules, public webinar sessions in 2020, stakeholder meetings, and conversations among the Maine Department of Labor staff.
Top FAQs are listed below. Please click the links to view the complete FAQ documents.
Employee Question: Am I eligible for this benefit? Answer: If you work for an employer who has more than 10 employees in Maine and you are not under a collective bargaining agreement as of 1/1/2021, you may be eligible for this benefit.
Question: These rules apply to employers that employ more than 10 employees. Does the count include part-time employees? Answer: Yes. Rule section II.E. specifies that covered employees include those who work full-time, part-time, and per diem.
Question: When does an employee start accruing Earned Paid Leave? Answer: Accrual of Earned Paid Leave beings at the start of employment. The start of employment is defined in the Rules as the first day that an employee performed work for the employer. Please note that completion of new hire paperwork is considered time worked and should be paid as such. This time will count toward the accrual of Earned Paid Leave.
Employee Question: My employer told me that I will not be entitled to Earned Paid Leave because I am an independent contractor, not an employee. I believe that I am misclassified and that I am an employee. What should I do? Answer: Contact the Bureau of Unemployment Compensation at 207-621-5120. They will investigate whether, under 26 M.R.S. 1043(11)(E), you are exempted from the definition of employment. If you are not exempted, your employer will be responsible for paying unemployment taxes for the back quarters for which you were working in “employment.” After BUC completes its investigation, it will report the results to the Bureau of Labor Standards (BLS). If the BUC finds that you are an employee and not an independent contractor, the BLS will inform your employer that you are entitled to Earned Paid Leave and that the employer is subject to penalties if it fails to comply. BUC also has the discretion to assess a penalty against the employer for misclassification pursuant to 26 M.R.S. 591-A.
Employee Question: Does the employer always have to give me time off? Answer: No. The employer can require up to 4 weeks’ notice for use of leave other than an emergency, illness, or other sudden necessity and can restrict dates that such time off may be granted. For instance, they might restrict or not allow leave (other than leave for an emergency, illness, or other sudden necessity) during a holiday season, or other busy seasons or days. We recommend that employers create a written policy and clearly communicate restrictions to avoid any misunderstandings.
Employer Question: I want to avoid multiple workers using leave at the same time. How can I best do that and stay within the law? Answer: You may want to consider identifying times of the year, month, or week that leave may be restricted due to operational needs, other than leave for an emergency, illness, or sudden necessity. Employers must be able to prove undue hardship if they deny the use of leave for any reason. A written policy outlining dates that planned employee leave is restricted due to operational needs is one of the best ways to ensure compliance with this piece of the Earned Paid Leave law.
Question: Schools often have employees who are covered under a collective bargaining agreement (CBA), as well as employees who receive PTO through a standard leave policy. Does the CBA policy need to be identical to the standard policy in terms of handling Earned Paid Leave? For example, could we front-load Earned Paid Leave under the CBA, but not under the standard leave policy? Answer: If each policy meets the minimum standard set by Maine’s Earned Paid Leave law and an employee does not lose what they would have accrued as a benefit, a standard policy and a CBA do not need to be identical. It is at the discretion of the employer or CBA (where applicable) to front-load Earned Paid Leave.
Question: How would you handle a long-term substitute teacher as well as a regular substitute who only works from time to time? Do schools need to provide Earned Paid Leave and how would we account for those hours? Answer: Yes, a substitute teacher will accrue 1 hour of Earned Paid Leave for every 40 hours worked.
A good business practice would be to keep daily time records. If you do not keep daily time records, what is their pay based on? Their pay will need to be converted to an hourly rate and that amount will be their base rate of pay.
Question: For coaches and substitutes, PTO is a "bonus" because they will not take time off during the season but will want to cash out their PTO at the end of the season. Can we treat Earned Paid Leave the same way? Answer: The option to cash out Earned Paid Leave may be offered by an employer, but it cannot be mandatory. An employee may decide to cash out their accrued balance of Earned Paid Leave at the end of the season or school year, but must be permitted to roll over unused, accrued Earned Paid Leave if they would prefer to do so.
Question: My understanding is that until a current collective bargaining agreement term ends, the contract takes precedent. New contracts negotiated after 1/1/2021 must include Earned Paid Leave as a benefit going forward. Does the term “new contract” include both newly implemented contracts and renegotiated contracts? Answer: Yes. The contract takes precedent until its expiration date. All new and renegotiated contracts will need to comply with the Earned Paid Leave law.
Question: Is it correct that if a municipal employer provides an employee with paid time off benefits, either through a collective bargaining agreement or policy, in excess of what this law provides and that meets the requirements of Earned Paid Leave (such as notice, rollover, use, accrual, and the base rate for first 40 hours), the employer does NOT have provide this benefit in addition to the leave currently offered? Answer: Correct. If the current policy meets the minimum standards of this law, then no additional benefits are required. Please reference our General FAQ document for a detailed overview of how to verify that an existing policy meets the requirements of the Earned Paid Leave law.
Question: In a situation where a new full-time union employee is provided with 8 personal hours upon hire, 8 hours of sick time at the beginning of each month, and 40 hours of vacation upon reaching 6 months of employment, they receive far more paid time off in a calendar year than is required by the new law, however, they cannot use those hours for any reason, as the union contract usually specifies what the different accrual types may be used for. When I spoke to an MDOL employee a month ago, I was told that even though the amount is greater than required, it will not comply because of the contract accrual use restrictions. If this is true, it will in-effect require Page 2 employers to use divided accrual buckets to make significant contract changes upon renegotiation. How do we address this in the next round of contract negotiations?
Question: How do we calculate the number of days employed to know when an on-call or per-diem employee is eligible to use their accrued Earned Paid Leave? Answer: The number of days employed does not equate to the number of days worked. The first day the employee performs any work is the start date. 120 calendar days from that date is when the employee is eligible to use any accrued Earned Paid Leave.
Question: Could on-call municipal employees who report to work only as needed during snowstorms to plow roads be excluded under Subsection 17 of 26 M.R.S. 1043, 11(F)(17)(i)(iv)? Answer: No, that particular exemption is for emergencies. An emergency is considered an unforeseen event. Snowstorms in Maine are not considered unforeseen events.
Question: Per diem fire-rescue workers only sign up for shifts that they can attend. Some work one shift per week, some only once per month. How is Earned Paid Leave used for doctor’s appointments etc.? Answer: If a per diem employee needs to leave a shift early or cannot make a shift that they signed up for, then they should be able to use their accrued Earned Paid Leave. The employee would be entitled to use their accrued EPL if they need to arrive late for a shift or leave early for an emergency, illness, or sudden necessity.
Question: Do we still need to track that accrued time in case employees are hired back in some other capacity, or as they, over time, will continue to accrue modest amounts of leave if they work year after year? Answer: Yes, you would have to track the amount that they accrued, and they would be able to use it in another capacity. If the employee has a balance of accrued Earned Paid Leave that wasn’t paid at the time of separation and the employee returns to work for the same employer within 12 months, the balance of accrued unpaid Earned Paid Leave would be available for that employee as long as 120 days have passed from their first date of employment to the start of their employment in any subsequent position.
Final Responses to Public Comments on Earned Paid Leave (PDF)
The Poster - Regulation of Employment Poster - rev 10/20 (PDF)