Your Employment Questions Answered

This information is accurate as of March 20, 2020, and is subject to change based on any new legislation.

Maine Unemployment:

Who does it apply to: all eligible employees – size of employer does not matter.

When does it apply:

1. Employee  is temporarily laid off due to a partial or full closure of Employer as a result of the state of emergency and is expected to return to work when emergency closure lifted;

2. Employee is temporarily quarantined to ensure the employee has not been affected with the expectation of returning to work once the quarantine is over; or

3. Employee leaves employment due to risk of exposure or infection or to care for a family member.

Duration: During state of emergency and for 30 days following termination of state of emergency.

Timing: Benefits available immediately; no waiting period.

Notes: Must remain able and available to work that would not cause employee to break isolation or quarantine and maintain contact with employer.

Not available if employee receiving paid sick leave from employer.

This information is accurate as of March 20, 2020, and is subject to change based on any new legislation.


New Federal FMLA Leave

Who does it apply to:  Employee who has been employed for at least 30 calendar days by employer.

Employer with fewer than 500 employees
The Act excludes employers with fewer than 50 employees from civil FMLA damages for violating the law, but it is not clear whether this is intended to exclude those employers from complying at all other damages may apply.

**  It appears employer who employs a “health care provider” or “emergency responder” can elect to exclude that employee from this leave.

When does it apply: when employee is unable to work (or telework) due to the need for leave to care for a son or daughter under age 18 if the school or place of care has been closed, or the child care provider is unavailable, due to public health emergency.

What is permitted? Up to 12 weeks of leave.

Is it paid? How does it interact with other leave?

1. First 10 days is unpaid Employee can elect to substitute accrued vacation leave, personal leave or medical or sick leave for this unpaid time.

2. After 10 days, time is paid by employer calculation of paid time: at least 2/3 of regular rate of pay based on number of hours employee normally scheduled to work; not to exceed $200 per day and $10,000 in the aggregate.

3. Some rights to restoration to position.

Notes: Secretary of Labor can issue regulations to exclude certain health care providers and emergency responders from those eligible; can exempt businesses with LESS THAN 50 employees if it would jeopardize viability of the business.

Duration: April 2 to December 31, 2020.

This information is accurate as of March 20, 2020, and is subject to change based on any new legislation.


New Federal Emergency Paid Sick Time Law

Who does it apply to: All employees, no matter how long they have been employed; all employers (no minimum or maximum size); Private employers who employ fewer than 500 employees and public agencies that employ 1 or more employees.

When does it apply: When employee unable to work (or telework) due to need for leave because:

1. Employee is subject to a federal, state or local quarantine or isolation order related to COVID;

2. Employee has been advised by a health care provider to self-quarantine due to concerns related to COVID;

3. Employee is experiencing symptoms of COVID and seeking a medical diagnosis;

4. Employee is caring for an individual who is subject to an order to quarantine or isolate or has been advised to do so;

5. Employee is caring for a son or daughter if the school or place of care for child is closed or child care provider is unavailable, due to COVID;

6. Employee is experiencing any other substantial similar condition.

This law DOES NOT appear to cover a situation where an employee who is not in one of the categories above is subject to reduced hours or layoff solely because the employer’s business is in partial or full closure or has otherwise been affected by COVID.

What is permitted?

1. 80 hours of paid sick time for FT employees; pro-rated for PT.

2. Calculation is based on employees “required compensation” and number of hours employee would normally be scheduled to work but not to exceed $511 per day and $5,110 in the aggregate for an employee’s ‎self-isolation, medical diagnosis, or treatment; cannot exceed $200 per day and $2,000 in the ‎aggregate for sick leave taken by an employee to care for a family member or child.‎

3. If the leave is taken for the employee’s own self-isolation, medical diagnosis, or treatment, the ‎employee is entitled to paid leave at 100% of his or her regular rate of pay. If leave is ‎taken to care for a family member or child, employers only are required to provide leave at 2/3 ‎the regular rate of pay.

4. If an employee is paid under something other than a typical pay arrangement, the employer is to ‎calculate average daily hours worked similar to under the amended FMLA. The DOL should be issuing guidance to assist with these calculations.

How does it interact with other leave?

1. Available immediately, no matter how long employee has been employed.

2. *Employer CANNOT require that employee use other paid leave before using this leave.

3. Leave ceases as of next scheduled shift immediately following the end of employee’s need for the leave.

Notes: Employer can exclude certain health care providers and emergency responders from those eligible special provisions for CBA’s.

Cannot diminish any rights or benefits employee has under other federal, state or local law; CBA; or existing employer policy.

No job protection coverage as provided under the amended FMLA.

Secretary of Labor can issue regulations to exclude certain health care providers and emergency responders from those eligible; can exempt businesses with LESS THAN 50 employees if it would jeopardize viability of the business.

Duration: April 2 to December 31, 2020

This information is accurate as of March 20, 2020, and is subject to change based on any new legislation.


HOW DO THESE LAWS OVERLAP

This is a very complicated question that we will try to address at our next Chamber session with hypotheticals.

Notes: State unemployment law and federal FMLA and sick leave seem to cover some of the same situations.

Maine unemployment applies to all qualifying employees and all employers. Federal FMLA and federal sick leave amendment limited in application to employers less than 500 unless Secretary of Labor exempts those with fewer than 50.

Federal sick leave law prohibits employer from requiring qualifying employee from using any other paid leave before using this leave – so the employer CANNOT require employee to use accrued paid vacation, sick or other time – either under employer’s own policy, unemployment or amended FMLA.

Maine unemployment specifically says it does not apply if employee is receiving paid sick leave from employer. So, if a qualifying condition exists for both unemployment and paid sick leave, employee may be able to choose which benefit to pursue. If employee pursues federal sick leave first, then employee may be eligible for Maine unemployment when that runs out.

If employee is not sick and does not fit into one of the listed coverages under sick leave law, but is laid off due to employer’s business impacted by COVID, then unemployment may be only law that applies.

We will continue to analyze and provide updates.

This information is accurate as of March 20, 2020, and is subject to change based on any new legislation.