Are You Prepared for the New Employment-Related Legislation?

By Anne-Marie L. Storey, Esq.

Employers should have their calendars marked for Thursday, September 19, 2019, as the day on which nonemergency laws passed in the First Regular Session of the 129^th Legislature become effective.

In our recent Lunch and Learn sessions discussing the legislation, we recommended that employers review existing application forms as well as employee handbooks/policies for necessary and/or suggested updates. This article highlights a few of the items that may need attention based on the new legislation.

First, the following are two suggestions for ways in which employment applications may need to be amended.

• An Act Regarding Pay Equality prohibits employers from asking about an applicant’s compensation history until after a job offer including compensation terms has been extended.  Therefore, any request for information as to past salary history should be removed from employment applications (with the exception of an employer who asks about compensation history pursuant to any federal or state law that specifically requires the disclosure or verification of compensation history for employment purposes).
• An Act to Protect Job Applicants from Identity Theft prohibits an employer from requesting a social security number from a prospective employee on an employment application or during the application process for employment (except for the purposes of substance abuse testing or a pre-employment background check). This law is not effective until January 1, 2020, so at the very least, before that date employers should ensure that applications no longer request this information (although it is advisable that the applications already stop asking for this information so as to prevent potential identity theft).

Second, a few of the updates/changes recommended to personnel policies include the following:

• An Act to Prohibit Employer Disciplinary Action Against Firefighters and Emergency Medical Services Persons Responding to an Emergency adds emergency medical services persons as covered by the law. The law prohibits an employer from discharging or disciplining such an employee for failing to report to work initially or being absent during regular work hours if it is due to a response to an emergency. There is an exception if the person has been designated as essential, which must be in writing and signed by both the employee and employer. There are provisions regarding an employee’s notice of status, a possible designation of the employee as essential, and the process for an employee to give notice of the leave. Employers may want to consider adding this provision to the handbook or, if it already exists, making sure it also includes emergency services personnel.
• An Act to Create Veteran-Friendly Workplaces requires an employer to allow a veteran to take time away from work to attend a scheduled appointment at a medical facility operated by the United States Department of Veterans Affairs, as long as the veteran gives the employer notice of the appointment as soon as reasonably possible. If paid leave is available, the employer has to allow a veteran to use such available paid leave to attend the appointment; otherwise, the employer must grant unpaid leave to the veteran to attend the appointment. To the extent that employee policies/handbooks detail available leave, employers may want to consider adding this provision.
• Workers’ Compensation Changes Among the other changes, the new law increases the time for an employee to give notice of an injury from 30 days to 60 days (for injuries on or after January 1, 2020). If a handbook makes reference to an employee’s timeframe for reporting any injury (other than asking that it be as soon as possible), be sure the reporting time is correct.

Of course, the biggest change is the paid leave law. It is certainly worthwhile to begin considering how this law will be applied to an employer’s existing practices and what changes this will necessitate to existing policies and procedures (i.e. reporting times, reporting to supervisors, application of the amount of leave, etc). However, since the law does not go into effect until January 1, 2021, and we are awaiting rulemaking from the Department of Labor to further clarify the new law, further changes may need to be made before the effective date.

Third, An Act to Clarify Various Provisions of the Maine Human Rights Act amends the Act to make it unlawful for a place of public accommodation to designate a single-occupancy toilet facility for use only by members of one sex. While this new law does not apply to employers (unless as a place of public accommodation), this is an advisable practice for places of employment as well and so employers should consider its designations.

This is by no means an exhaustive list of the changes the new legislation will require and the RW Employment Team will further discuss the implications of the new legislation at its Annual Employment Seminar in October.