Time Off from Work - What Are My Rights?

What are my rights if I need time off from work for illness or the birth or adoption of a child?

There are two laws that may help:

• The Maine Family Care Act. This act allows some Maine workers to use a portion of the paid leave time they have earned to care for another family member who is ill.
• The Family and Medical Leave Acts (state and federal) give certain workers the right to unpaid time off from work for the birth or adoption of a child, their own illness or the illness of an immediate family member.

Here is a summary of these laws.

The Maine Family Care Act

What is the Family Care Act?

This law gives you the right to use up to 40 hours a year of your paid sick time, vacation time, or compensatory time off to care for a sick child, parent or spouse, if:

• You work for an employer (public or private) with 25 or more employees; and
• You have already "earned" the amount of leave that you want to take.

Do I have the choice of which kind of leave to use for this leave?

It depends. If you have more than one kind of paid leave you can chose how much of each to use unless your employer has a policy that says you must use your leave time in a certain order. For example, your employer could require you to use your vacation time first, instead of your sick time, to care for your family member. But, if you don't have 40 hours of earned vacation time, you must still be allowed to take a full 40 hours if you have other kinds of paid leave to make up the difference. In order to limit your choice like this, your employer must apply the same rule to everyone in the workplace.

Who can help if my employer:

• Refuses to let me use my sick, vacation or compensatory time off to take care of my family?
• Threatens to fire or otherwise punish me for requesting this leave?

Call the Maine Department of Labor, Wage and Hour Division : (207) 624-6400, TTY - 1-800-794-1110. They have the authority to enforce Maine’s Family Care Act.

For more information:
Go to the Maine Family Care Act (26 MRSA Section 636)

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Family and Medical Leave in Maine

There are two Family and Medical Leave laws that affect Maine workers - a State law and a federal law. They both give certain workers the right to take time off from work for a serious family illness or the birth or adoption of a child. Neither of these laws requires that you be paid during the leave.

In general, the Maine law covers more people, but the federal law gives better coverage if it applies to you. When there is a difference between the State and federal law, you can use the one that is most generous as long as you qualify under that law. But, you can't add your state and federal leave time together to take the maximum amount of time under both laws. Any leave time you take under one law is offset against the other.

Here are the basics of each law:

The Maine Family Medical Leave law

Who qualifies and for how long?

Under Maine law you are eligible for up to 10 weeks of family medical leave in a two-year period if you worked for your employer for at least 12 months in a row and your employer:

• Has 15 or more employees at one location (all employees count - even those working part time); or
• Is a state agency; or
• Is a city or town that has 25 or more workers.

You can take your family and medical leave all at once, or spread it out over time if that is what the medical condition requires. Even taking part of a single day off can count as family medical leave if it is necessary for the treatment of a serious illness. For example, if you have diabetes you may be able to take leave for periodic appointments for the continuing treatment necessary to manage this disease.

What can I take leave for?

If you qualify for family medical leave you may take a leave for any of these reasons:

• You, your spouse, your parent or your child has a "serious" illness;
• You are giving birth to a child (both parents are eligible for this leave); OR
• You are adopting a child.

What is a "serious illness"?

A serious illness is any illness that:

• Requires someone to be admitted to a hospital; OR
• Prevents you from working for a period of time (including a weekend, even if you aren't scheduled to work). (Maine law does not specify a number of days. Federal law specifies "more than 3 calendar days"); OR
• Requires repeated care from a doctor or other health care provider; OR


• Is a chronic illness, like asthma or diabetes.

What do I have to do to take a leave?

If possible, you must tell your employer 30 days in advance that you will need the leave. Otherwise, you must inform your employer as soon as possible after your absence. If there is an emergency, this may mean that you can only inform your employer after the fact.

The Federal Family and Medical Leave Law

What additional rights may be available?

If you qualify for the federal Family and Medical Leave Law you may have some additional rights. But, there are also some additional requirements. You must:

• work for an employer with 50 or more employees all working within a 75 miles of each other;
• have worked for your employer for at least 12 months (these do not have to be consecutive); and
• have worked for your employer for at least 1,250 hours in the 12 months preceding your leave.

Maine workers who qualify under the federal Family and Medical Leave law may be eligible for:

• Two additional weeks of leave. Federal law provides a total of 12 weeks of leave. This is two more weeks than is available under Maine's law.
• Leave available each year. Under federal law you are entitled to the maximum amount of leave (12 weeks) each year. Under Maine law eligible families are limited to 10 weeks of leave in a 2-year period.
• More protection for work-related benefits, like health insurance. Your employer must continue your health insurance benefits just as if you were working. This includes paying for some or all of your health insurance benefits if that is what happens while you are working. Your employer must treat other benefits, like holiday pay, the same way that other employees on other types of leave are treated. Under Maine law your employer is only required to make it possible for you to continue your health insurance at your own expense.

Is my job protected if I take Family Medical leave under State or federal law?

If you take a leave that is allowed by law, your employer cannot:

• Fire you;
• Refuse to give you back your job when you return (if your position has been filled, you must be given a job like it). There is a limited exception to this rule if your employer can show that other things have changed since you left;
• Deny your leave request; or
• Penalize or harass you for taking a leave.

What if my employer violates one or both of these laws?

Talk to a lawyer. Your lawyer can go to court and ask that your employer give you your leave, pay you anything you are owed, pay a fine, and pay for the lawyer's fees and court costs too.

If you qualify for a leave under the federal law, you can also file a complaint with the U.S. Department of Labor, Wage and Hour Division: (207) 780-3344 or (207) 945-0330.

What is the deadline for filing a complaint for violation of the state or federal family and medical leave law?

If you are claiming a violation of the federal law, you must file your complaint within 2 years of the date of the violation, or 3 years from the date of an employer's willful violation of the law. You may have a longer time to make a claim under the State law, but you should always get legal advice as soon as possible after you become aware of the violation.

More information:
Pine Tree Legal Assistance: Family Medical Leave
U.S. Department of Labor, Wage and Hour Division: The Family and Medical Leave Act
Read the Maine Family Medical Leave Act (26 MRSA Sections 843-848)