General Earned Paid Leave FAQ's

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.

The following information is general guidance based on hypothetical scenarios. It is not legal advice on any specific situation.

Individual cases must be analyzed and decided by the Bureau of Labor Standards (BLS).

Click on any of the drop downs listed below to view the general FAQs listed.

Payout of Unused Earned Paid Leave and Separation of Employment

Answer: You may lose any accrued leave unless the employer has a policy that states the balance of unused Earned Paid Leave is paid when employment ends.  If the employer does not have a policy for Earned Paid Leave, but has a policy regarding unused vacation time, then the policy on unused vacation time will apply to the unused Earned Paid Leave. In all cases, if the employer does not compensate you for the unused balance of Earned Paid Leave when employment ends, based on their policy and practice, then they will need to make the leave available to you if you return to work for that employer within a one-year period.

Answer: A covered employee who has been separated from their employment is entitled to accrued Earned Paid Leave if their employer has a policy that states the balance of unused Earned Paid Leave is paid when employment ends. If a former covered employee is not compensated for their unused balance of Earned Paid Leave when employment ends, based on the employer’s policy and practice, then that leave must be made available to them if they return to work for that employer within one year.

Answer: Whether an employer allows an employee to receive cash in lieu of actually taking time off is solely at the discretion of the employer. However, an employer cannot mandate that an employee take cash rather than using their accrued Earned Paid Leave.

Answer: The answer will depend on other factors. 

If you currently have a vacation policy that states the unused balance of vacation time will be paid at the time of separation (and you don’t have a separate Earned Paid Leave policy) then you will be required to pay the unused vacation and Earned Paid Leave balances. 

If you have a vacation policy that states the unused vacation balance is not paid at the time of separation, then the Earned Paid Leave balance will not need to be paid.

You can establish a separate policy for each type of paid time off that you offer, and each policy can have a different result as it relates to what will happen to any unused balance of time.

It would be a good business practice to create an Earned Paid Leave policy so there is no misunderstanding. The policy should include a section regarding:

Notice requirements that clearly states the minimum amount of advance notice that you require an employee to provide when requesting planned time off (cannot exceed 4 weeks advance notice) and notice as soon as practicable when the employee needs time off for an emergency, illness, or sudden necessity.

A section on the Minimum amount of Earned Paid Leave that can be used (i.e., one-hour increments,   hour increments, 15-minute increments, etc.).  Cannot be more than 1-hour increments.

A section on the Payout or No Cash Value of unused Earned Paid Leave balance at the time of separation.

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.