An Act To Support Healthy Workplaces and Healthy Families by Providing Earned Paid Sick Leave to Certain Employees
Maine Legislature, Session 129, LD 0369
Committee: Labor and Housing
Sponsors: MILLETT, FECTEAU, BELLOWS, JACKSON, VITELLI, CUDDY, DOORE, MOONEN
Amends: 26 MRSA §626, 26 MRSA §636

Legislative Document
No. 369
S.P. 110
In Senate, January 24, 2019
An Act To Support Healthy Workplaces and Healthy Families by 
Providing Earned Paid Sick Leave to Certain Employees
Reference to the Committee on Labor and Housing suggested and ordered printed.
DAREK M. GRANT
Secretary of the Senate
Presented by Senator MILLETT of Cumberland.
Cosponsored by Representative FECTEAU of Biddeford and
Senators: BELLOWS of Kennebec, President JACKSON of Aroostook, SANBORN, H. of 
Cumberland, SANBORN, L. of Cumberland, VITELLI of Sagadahoc, Representatives: 
CUDDY of Winterport, DOORE of Augusta, MOONEN of Portland.
Be it enacted by the People of the State of Maine as follows:
Sec. 1.  26 MRSA §626, first ¶, as amended by PL 2017, c. 219, §11, is further 
amended to read:
An employee leaving employment must be paid in full no later than the employee's 
next established payday.  Any overcompensation may be withheld if authorized under 
section 635 and any loan or advance against future earnings or wages may be deducted if 
evidenced by a statement in writing signed by the employee.  Whenever the terms of 
employment or the employer's established practice includes provisions for paid vacations, 
vacation pay on cessation of employment has the same status as wages earned.  Sick 
leave accrued pursuant to section 637 or section 638 does not have the same status as 
wages earned.
Sec. 2.  26 MRSA §636, sub-§2, as enacted by PL 2005, c. 455, §1, is amended to 
read:
2.  Use of paid leave and paid sick leave.  If an employer, under the terms of a 
collective bargaining agreement or employment policy or as required by section 637, 
provides paid leave, then the employer shall allow an employee to use the paid leave for 
the care of an immediate family member who is ill as provided in this section.
Sec. 3.  26 MRSA §§637 and 638 are enacted to read:
§637.  Earned paid sick leave
An employer that employs more than 5 employees shall provide to each employee 
earned paid sick leave as provided by this section.
1.  Definitions.  As used in this section, unless the context otherwise indicates, the 
following terms have the following meanings.
A.  "Department" means the Department of Labor.
B.  "Family member" means:
(1)  The employee's, and the employee's spouse's or domestic partner's, biological 
child, adopted child, foster child, stepchild or legal ward, a child to whom the 
employee or the employee's spouse or domestic partner stands in loco parentis or 
an individual to whom the employee or the employee's spouse or domestic 
partner stood in loco parentis when the individual was a minor; 
(2)  The employee's, and the employee's spouse's or domestic partner's, biological 
parent, foster parent, stepparent, adoptive parent or legal guardian or a person 
who stood in loco parentis when the employee was a minor child;
(3)  A person to whom the employee is legally married under the laws of any 
state or a domestic partner of the employee;
(4)  The employee's, and the employee's spouse's or domestic partner's, biological 
grandparent, foster grandparent, adoptive grandparent or stepgrandparent;
(5)  The employee's, and the employee's spouse's or domestic partner's, biological 
sibling, foster sibling, adoptive sibling or stepsibling; and
(6)  Any other individual related by blood or affinity whose close association 
with the employee is the equivalent of a family relationship.
2.  Accrual.  An employee entitled to earned paid sick leave under this section 
accrues the leave at a rate of no less than one hour of earned paid sick leave for every 30 
hours worked.  Accrual begins at the start of employment, but the employer is not 
required to permit use of the leave before an employee has been employed for 90 days.  
The employer shall permit an employee to carry forward at least 40 hours of accrued 
earned paid sick leave to the following year, but an employer is not required to allow the 
use of more than 40 hours of earned paid sick leave in one year.  An employer may 
provide all earned paid sick leave the employee is expected to earn in a year at the 
beginning of the year.
3.  Use of accrued earned paid sick leave.  Accrued earned paid sick leave may be 
used for the following:
A.  An employee's:
(1)  Mental or physical illness, injury or health condition;
(2)  Medical diagnosis, care or treatment of the employee's mental or physical 
illness, injury or health condition; or
(3)  Preventative medical care;
B.  A family member's:
(1)  Mental or physical illness, injury or health condition;
(2)  Medical diagnosis, care or treatment of the family member's mental or 
physical illness, injury or health condition; or
(3)  Preventative medical care; and
C.  If an employee or a family member is a victim of domestic violence or sexual 
assault:
(1)  Medical care or psychological or other counseling for physical or 
psychological injury or disability;
(2)  Obtaining services from a victim services organization;
(3)  Relocating due to domestic violence or sexual assault;
(4)  Obtaining legal services or participating in any civil or criminal proceedings 
related to or resulting from the domestic violence or sexual assault; or
(5)  Meetings at a child's school or place of care related to the child's health or 
disability or to the effects of domestic violence or sexual assault on the child.
Earned paid sick leave may be used in the smallest increment that the employer's payroll 
system uses to account for absences or use of other time.  An employee is not required to 
secure a substitute when that employee uses earned paid sick leave.
4.  Notice requirements.  Accrued earned paid sick leave must be provided upon the 
request of an employee, pursuant to the following requirements.
A.  The request may be made orally, in writing, by electronic means or by any other 
means acceptable to the employer.  When possible, the request must include the 
expected duration of the absence.
B.  When the use of earned paid sick leave is foreseeable, the employee shall make a 
good faith effort to provide notice of the need for the earned paid sick leave to the 
employer in advance of the use of the earned paid sick leave and shall make a 
reasonable effort to schedule the use of earned paid sick leave in a manner that does 
not unduly disrupt the operations of the employer.
C.  An employer that requires notice of the need to use earned paid sick leave when 
the need is not foreseeable shall provide a written policy that contains procedures for 
the employee to provide notice. An employer that has not provided to an employee a 
copy of its written policy for providing notice under this paragraph may not deny 
earned paid sick leave to the employee based on noncompliance with the policy.
5.  Combined paid leave.  An employer may meet the requirements of this section 
by providing paid leave that may be used by the employee interchangeably as either sick 
leave or vacation time, as long as this paid leave is in accordance with the accrual of 
earned paid sick leave in subsection 2.
6.  Supporting documentation.  For use of accrued earned paid sick leave for more 
than 3 consecutive days, an employer may require reasonable documentation from the 
employee in order to verify that the accrued earned paid sick leave has been used for a 
purpose described in subsection 3.
A.  Upon the employer's request, the employee must provide the documentation to the 
employer in a timely manner. The employer may not delay the employee's use of 
accrued earned paid sick leave on the basis that the employer has not yet received 
documentation.
B.  For use of accrued earned paid sick leave pursuant to subsection 3, paragraph A 
or B, reasonable documentation for purposes of this subsection includes, but is not 
limited to, a signed written statement from the employee or documentation signed by 
a health care professional indicating that the employee's or family member's use of 
accrued earned paid sick leave was based on one or more of the circumstances 
described in subsection 3, paragraph A or B.  An employer may not require that the 
documentation explain the nature of the illness.
C.  For use of earned paid sick leave pursuant to subsection 3, paragraph C, 
reasonable documentation is:
(1)  A police report indicating that the employee or family member was a victim 
of domestic violence or sexual assault;
(2)  A signed statement from a victim witness advocate affirming that the 
employee or family member is receiving services from a victim services 
organization;
(3)  A court document indicating that the employee or family member is involved 
in legal action related to domestic violence or sexual assault; or
(4)  A signed written statement from the employee.
An employer may not require that the documentation explain the details of the 
violence or assault.
D.  If an employer chooses to require documentation from the employee in order to 
verify that the accrued earned paid sick leave has been used for a permissible 
purpose, and the employer does not offer health insurance, the employer is 
responsible for paying all out-of-pocket expenses the employee incurs in obtaining 
the documentation. If the employer does offer health insurance, the employer is 
responsible for paying any costs charged to the employee by the health care 
professional for providing the specific documentation required by the employer.
E.  An employer may not require disclosure of details relating to domestic violence or 
sexual assault or the details of an employee's or a family member's medical condition 
as a condition of providing earned paid sick leave under this section.  If an employer 
possesses health information or information pertaining to domestic violence or sexual 
assault about an employee or a family member, the employer shall treat that 
information as confidential and may not disclose that information except to the 
affected employee or as approved by the affected employee.
7.  Notice of policies; posting.  The following provisions govern notice and posting 
requirements.
A.  An employer shall give employees written notice of the following at the 
commencement of employment or by January 1, 2021, whichever is later:
(1)  Employees are entitled to earned paid sick leave;
(2)  The accrual and amount of earned paid sick leave provided under this 
section;
(3)  The terms of use for earned paid sick leave guaranteed under this section;
(4)  That retaliatory personnel action against employees who request or use 
earned paid sick leave is prohibited by law;
(5)  That each employee has the right to file a complaint or bring a civil action if 
earned paid sick leave as required by this section is denied by the employer or the 
employee is subjected to retaliatory personnel action for requesting or taking 
earned paid sick leave; and
(6)  The contact information for the department from which questions about 
rights and responsibilities under this section can be answered.
This notice must be in English and any language that is the first language spoken by 
at least 10% of the employer's workforce, as long as the notice has been provided by 
the department pursuant to paragraph D.
B.  An employer shall record on the employee's regular pay stub, or an attachment to 
the pay stub, an accounting of the amount of earned paid sick leave available to the 
employee, the amount of earned paid sick leave taken by the employee to date in the 
year and the amount of pay the employee has received as earned paid sick leave.
C.  An employer shall display a poster that contains the information required in 
paragraph A in a conspicuous and accessible place in each establishment where 
employees are employed.  The poster displayed must be in English and any language 
that is the first language spoken by at least 10% of the employer's workforce, as long 
as the poster has been provided by the department pursuant to paragraph D.
D.  The department shall create and make available to employers, in all languages 
spoken by at least 10% of the State's workforce and any other language determined to 
be appropriate by the department, model notices and posters that contain the 
information required for employers' use in complying with paragraphs A and C.
8.  Record keeping.  An employer shall retain records for a period of 3 years 
documenting hours worked by employees and earned paid sick leave taken by employees, 
and shall allow the department access to such records, with appropriate notice and at a 
mutually agreeable time, to monitor compliance with the requirements of this section.  
When a dispute arises as to an employee's entitlement to earned paid sick leave under this 
section, if the employer has not maintained adequate records documenting hours worked 
by the employee and earned paid sick leave taken by the employee, or does not allow the 
department reasonable access to such records, there is a presumption that the employer 
has violated this section, absent clear and convincing evidence to the contrary.
9.  Exercise of rights protected; retaliation prohibited.  An employee has the right 
to use earned paid sick leave pursuant to this section, the right to file a complaint or 
inform any person about any employer's alleged violation of this section, the right to 
cooperate with the department in its investigations of alleged violations of this section 
and the right to inform any person of that person's rights under this section.  An employer 
or any other person may not interfere with, restrain or deny the exercise of, or the attempt 
to exercise, any of these rights.
An employer may not take retaliatory personnel action or otherwise discriminate against 
an employee because the employee has exercised a right protected under this section.  An 
employer's absence control policy may not treat earned paid sick leave taken under this 
section as an absence that may lead to or result in retaliatory personnel action.  The 
protections in this section apply to any person who mistakenly, but in good faith, alleges 
a violation of this section.
10.  Violation; rebuttable presumption.  There is a rebuttable presumption of a 
violation of this section if an employer takes adverse personnel action against an 
employee within 90 days after that employee does any of the following:
A.  Files a complaint with the department or a court alleging a violation of this 
section;
B.  Informs any person about an employer's alleged violation of this section;
C.  Cooperates with the department or another person in the investigation or 
prosecution of any alleged violation of this section; 
D.  Opposes any policy, practice or act that is prohibited under this section; or
E.  Informs any person of that person's rights under this section.
11.  Complaints and investigation.  The department shall enforce the provisions of 
this section.  The department shall establish a system that allows for multiple methods of 
communication by which it may receive complaints regarding any alleged violations of 
this section.  Any person alleging a violation of this section may file a complaint with the 
department.  To the maximum extent permitted by law, the name and other identifying 
information of the person reporting the alleged violation is confidential and may not be 
disclosed except that, with the authorization of the person reporting the alleged violation, 
the department may disclose the person's name and other identifying information as 
determined to be necessary to enforce this section or for other appropriate purposes.  
Filing a complaint with the department is neither a prerequisite nor a bar to bringing a 
civil action.
Upon receiving a complaint alleging a violation of this chapter, the department shall 
investigate the complaint in a timely manner and shall attempt to resolve the complaint 
through mediation between the complainant and the subject of the complaint or through 
other means. The department shall keep a complainant notified regarding the status of the 
complaint and any resultant investigation.  If the department determines that a violation 
of this section has occurred, it shall issue to the person or entity it has determined has 
violated this section a notice of violation describing the relief required of the person or 
entity.  The department shall prescribe the form and wording of such notices of violation 
and any method of appealing the decision of the department.
12.  Civil violation.  An employer that fails to provide earned paid sick leave in 
violation of this section or who takes retaliatory personnel action against an employee or 
former employee commits a civil violation for which a fine of not more than $1,000 may 
be adjudged.
An employer that willfully violates the notice or posting requirements in subsection 7 
commits a civil violation for which a fine of not more than $100 may adjudged.
13.  Private right of action.  An employer that violates this section is liable to the 
individual affected by the violation for appropriate relief collectible in a civil action, 
including, but not limited, to the following relief:
A.  Payment for unpaid leave taken that should have been earned paid sick leave;
B.  Payment of back wages;
C.  An amount equal to the sum of the amounts under paragraphs A, B and D, if 
applicable, as liquidated damages;
D.  Costs and reasonable attorney's fees, at the discretion of the court;
E.  Rehiring or reinstatement to the individual's previous position with the employer; 
and
F.  Reestablishment of employee benefits to which the individual otherwise would 
have been eligible if the individual had not been subjected to retaliatory personnel 
action or discrimination.
An affected individual may bring a civil action to collect appropriate relief.  An action 
taken by an affected individual under this subsection may be brought not later than 3 
years after the date of the last event constituting the alleged violation for which the action 
is brought or the date when the individual knew of the violation, whichever is later.  The 
right to bring an action provided by this subsection terminates on the filing of a complaint 
by the Attorney General in an action under subsection 14 in which a recovery is sought 
related to the same violation or violations of an employer relating to the affected 
individual. 
14.  Civil action by the department.  The department may impose penalties and 
may grant an employee or individual all appropriate relief, including, but not limited to, 
payment of all earned paid sick leave improperly withheld, all damages incurred by the 
complainant as the result of violation of this section, back pay and reinstatement in the 
case of job loss.
If the director determines that there is reasonable cause to believe that an employer 
violated this section and the department is subsequently unable to obtain voluntary 
compliance by the employer within a reasonable time, the department shall bring a civil 
action through the Attorney General on behalf of an affected individual or individuals as 
provided in subsection 13, except that a civil action may not be brought on behalf of an 
individual has filed an action under subsection 13 related to the same violation or 
violations of this section.
A civil action brought under this subsection may be joined with a civil action to collect 
fines under subsection 12.
15.  Effect on collective bargaining.  Except for a collective bargaining agreement 
as described in subsection 16, paragraph A, a contract or agreement between the 
employer and the employee or any acceptance by the employee of a paid leave policy that 
provides fewer rights or benefits than provided by this section is void and unenforceable.
16.  Application; construction; successor employer; reinstatement.  This section 
applies subject to the following.
A.  This section does not apply to an employee covered by a collective bargaining 
agreement during the period between January 1, 2021 and the expiration of the 
agreement.  This section does apply to employees covered by a collective bargaining 
agreement entered into and in effect on or after January 1, 2021, unless the collective 
bargaining agreement expressly waives the requirements of this section in clear and 
unambiguous terms.
B.  This section does not apply to an individual employed by the individual's parent, 
spouse or child.
C.  Nothing in this section may be construed to require financial or other 
reimbursement to an employee from an employer upon the employee's termination, 
resignation, retirement or other separation from employment for accrued earned paid 
sick leave that has not been used.
D.  A successor employer, or an employer over which there is substantial common 
ownership, management or control between the successor and predecessor employer, 
is responsible for the earned paid sick leave rights accrued by employees of the 
predecessor employer.  These employees are entitled to use earned paid sick leave 
previously accrued pursuant to the terms provided in this section, irrespective of the 
90-day period described in subsection 2.
E.  If an employee separates from employment and is rehired by the same employer 
within 12 months of the separation, the employer shall reinstate previously accrued, 
unused earned paid sick leave and shall permit the reinstated employee to use that 
accrued earned paid sick leave and to accrue additional earned paid sick leave upon 
reinstatement.
17.  Rules.  The department shall adopt rules to implement and enforce the provisions 
of this section and section 638, including rules regarding the receipt, investigation and 
prosecution of complaints brought under this section.  Rules adopted pursuant to this 
subsection are major substantive rules as defined in Title 5, chapter 375, subchapter 2-A.
§638.  Earned unpaid sick leave
An employer that employs 5 or fewer employees in the State shall implement a policy 
that allows an employee to accrue and use at least 40 hours of unpaid earned sick leave 
per year.
An employer may meet the requirements of this section by providing unpaid leave 
that may be used interchangeably as either sick leave or vacation time, as long as the 
accrual of this unpaid leave is otherwise in accordance with this section.
Sec. 4.  Effective date.  This Act takes effect January 1, 2021.
SUMMARY
This bill creates a right to earned paid sick leave for employees who are employed by 
an employer that employs more than 5 employees.  The bill also creates a right to earned 
unpaid sick leave for employees of an employer that employs 5 or fewer employees.  This 
bill takes effect January 1, 2021.