| Who: Maine Department of Labor What: Public hearing and comment period for Paid Family and Medical Leave program rules. When: Public hearing in Augusta on Monday, June 10 at 9 am. Comments accepted through July 8. Where: Frances Perkins Room at 45 Commerce Drive, Augusta. Written comments, broken down by section, can be submitted here. Link to MFPC comment Link to Draft rule |
| On Monday, June 10, the Maine Department of Labor will hold a public hearing on draft rules implementing the new Paid Family and Medical Leave program. The Council will testify on behalf of members highlighting a number of concerns regarding the draft rules, which contain language that conflicts within the draft and with the statute itself. The Council is deeply concerned with the proposal being considered, as it would make it next to impossible for operations to continue at current capacity. Measures to prevent fraud are inadequate and obvious loopholes exist, making this program far too easy to exploit. Our in-depth analysis is included in our written comments here, but a few of our more grievous concerns include: – As drafted, the rules don’t seem to include the requirement for a medical professional to sign off on the need for medical leave, as is required by other programs such as short-term disability. Without the backstop of a medical professional, this program is ripe for abuse. – The timeline for employers to opt-out of the program is unreasonable, and out of step with how other states have handled private plans. Businesses who intend to opt-out of the program should be allowed to apply for an exemption the same day that payroll taxes begin, January 1, 2025. That would provide a three-month runway for the plan without overly burdening employers and employees that do not intend to participate in the program. – The rules are written in a way that locks employers into specific private plans without allowing for flexibility to change plans once an exemption has been granted. There are many legitimate reasons why an employer may seek to change plans. It is unclear why the rules are so rigid when flexibility here may benefit both employers and employees. – While the rules include mandatory penalties for noncompliance for employers, employees may not even have to repay the fund if found guilty of fraud. Penalties should be consistent to prevent fraud, and to protect fund solvency. – The rules should require a waiting period in between qualifying events. Otherwise, employees could utilize this program, through intermittent or reduced-schedule leave, on an ongoing basis. – Regarding undue hardship, the rules are out-of-step with statute. The statute says, “Use of such leave must be scheduled to prevent undue hardship on the employer as reasonably determined by the employer.” [PL 2023, c. 412, Pt. AAA, §7 (NEW).] The draft rules state, “…all facts and circumstances surrounding the determination shall be considered by the Department…” This interpretation is inconsistent with the intent of the law and needs to be reworked. Additionally, the Department should not have the authority to unilaterally dictate work schedules and arrangements with decisions not being “subject to review.” – Affinity relationships are too loosely defined and lack accountability. For example, there is no requirement for the individual being claimed as an affinity relationship to be notified or provide consent. There is also no inclusion of a medical provider. Additionally, as drafted, the rules would allow for multiple individuals to claim an individual as their “affinity” person, again, making the program vulnerable to abuse. Finally, it will be critical for the rules to be drafted in a way to encourage employees and employers to work together to find alternative schedules that work for all parties involved, especially considering that employees will be allowed to utilize this program to care for individuals outside of their immediate family units. The Council is concerned about the impact these rules will have on our members’ ability to operate. Without consideration of this new program, it is estimated that our industry will need an additional 5,000 employees by the year 2030 due to our aging workforce. And our industry isn’t alone in these struggles. Just last week, at a Maine International Trade Center event, Governor Mills said, “… our economic growth is continuing to outpace the number of people who are available to work in Maine.” We agree, which is why it is critical for DOL to take the time that is necessary to address these concerns before the program is live. While it is understandable that employees need help in dealing with personal family and medical matters, this program goes well beyond maternity/paternity leave. Adequate guardrails must be included to provide accountability and flexibility for Maine workers and businesses. We strongly encourage the Department to address these concerns, and provide additional opportunities for public comment before the draft rules are adopted. Please share our concerns and testimony with your HR departments, and prepare to testify in person next Monday, or submit written comments. If you have any questions, please let me know (kwest@maineforest.org). Thank you. Sincerely, Krysta WestDeputy Director |