OVERVIEW OF FAMILY MEDICAL LEAVE ACT

Howard T. Reben, Esq.

UPDATE: As of September 20, 2007, Maine now includes domestic partners as part of its Family Medical Leave Act. This article is updated to reflect the change.

Family medical leave is a statutory right requiring certain employers to offer an unpaid leave of absence for a specific period of time to those employees who need the time to care for: a newborn or newly adopted child; certain seriously ill family members; or, themselves while recovering from a serious health condition resulting from an injury or illness. If the employee seeks leave in order to recover from a serious health condition, the employer may require the employee to submit medical evidence to document the condition. Further, if leave is sought in order to care for a family member, then the leave is limited to caring for an employee's parent, child, spouse, or, (under Maine law) the employee's domestic partner. Therefore, there is no right to unpaid leave to care for an aunt, uncle, mother-in-law, etc., no matter how close the personal relationship. Finally, while its duration is limited, all of the permitted leave doesn't have to be taken at once.

Because there are both state and federal laws covering the topic, the benefits an employee is entitled to under the Family Medical Leave Act are somewhat confusing. The federal law has the best benefits but it is the most difficult to qualify for. For example, in order to qualify for coverage under federal law the employee must work in an organization which has 50 or more employees working within 75 miles of the employee's work site, and at the same time, the worker must have been employed for at least 1,250 hours during the past year. In contrast, in order to qualify under Maine's Family Medical Leave Act, an employee must only work for an employer who has at least 15 employees at a permanent work site.

Maine's recent expansion of its Family Medical Leave law now allows an employee to request leave to care for their domestic partner or their domestic partner's child. In order to meet the definition of "domestic partner" under the statute, that person must be a mentally competent adult who has lived with the employee for at least 12 months. The domestic partner cannot be a sibling of the employee or legally married or separated from another person. Finally, the domestic partner must be - and expect to remain - the sole partner of the employee and be jointly responsible with the employee for each other's common welfare (as evidenced by joint living or financial arrangements, or joint ownership of real or personal property).

Except in the case of medical emergency, the employee must give the employer thirty days advance notice of the intent to take family leave. While the leave is unpaid, it may be combined with paid leave such as vacation or sickness benefits. Upon return from family medical leave, most employees must be restored to their original or equal positions with equivalent pay, benefits and working conditions. It is unlawful for the employer to interfere with, or fail to permit the exercise of, Family Medical Leave Act benefits or to discharge or discriminate against an employee for exercising his or her rights under the Family Medical Leave Act.

MAINE STATE LAW

  • Fifteen (15) employees at a permanent work site is the minimum to qualify for coverage
  • Ten (10) weeks' medical leave, maximum over two (2) years
  • Employee benefits during leave at employee's expense, unless otherwise agreed
  • Physician verification may be required unless employee relies on prayer or spiritual healing
  • More or less leave may be negotiated

FEDERAL LAW

  • Fifty (50) employees to qualify
  • Twelve (12) weeks maximum leave per year
  • Benefits paid as if actively employed

These are just a few of the many differences between the state and federal Family Medical Leave laws. There are also many other technical questions involving the application of these laws to each employee's particular situation; for example, how the year is computed in determining the benefits. Questions regarding your eligibility and rights under these statutes should be directed to qualified counsel.

Reben, Benjamin & March
97 India Street, P.O. Box 7060
Portland, ME 04112
Phone: (207) 874-4771
Toll Free: 877-413-0861 | 800-622-7911
Fax: (207) 772-6402
e-mail

Located in Portland, Maine, Reben, Benjamin & March assist clients in Augusta, Biddeford, Falmouth, Kittery, Lewiston, Portsmouth, Saco, Waterville, and Yarmouth, and in Cumberland County, York County, Sagadahoc County, Androscoggin County, and Lincoln County.