MSCC - Maine State Chamber of Commerce
09/30/2024 | Press release | Archived content
Maine State Chamber submits comments on 2nd round of proposed State Paid Family & Medical Leave rules; Raises Concerns on “Undue Hardship” provision
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For Immediate Release
Monday, September 30, 2024 |
Media contact: Jen Webber
Cell: 207-939-0213 |
AUGUSTA, Maine (Monday, September 30, 2024) - The Maine State Chamber of Commerce submitted written comments today to the Maine Department of Labor (MDOL) on MDOL's second round of proposed Paid Family & Medical Leave (PFML) rules. In both written comments submitted today and in public hearing testimony on September 17, 2024, the Maine State Chamber expressed its appreciation for MDOL's consideration of the business community's input on the implementation of Maine's PFML program. The Maine State Chamber also shared continuing concerns Maine employers have in several areas of the rules, including the "Undue Hardship" provision.
"Maine's Paid Family and Medical Leave program rulemaking is one of the most significant regulatory initiatives in a generation and the Maine State Chamber of Commerce appreciates the previous revisions to reduce the tax on businesses that will never utilize the state program," said Patrick Woodcock, CEO and President of the Maine State Chamber of Commerce. "We continue to have strong concerns that the 'undue hardship' provision in the rulemaking fails to follow legislative language and empower businesses to determine undue hardship. The Maine Department of Labor needs to talk to small retail shops, lobstermen, and farmers if they believe that simply providing 30 days notice absolves the undue hardship on business when there is unexpected leave with Maine's seasonal economy. The MDOL should follow the plain language of the legislative language and allow Maine businesses to make these decisions."
The Chamber's written comments highlight the Undue Hardship provision's inconsistencies with statute and statutory intent, and the significant impact that, if not corrected, the Undue Hardship provision will have on employers and employees. The statute includes the following provision: "Use of such leave must be scheduled to prevent undue hardship on the employer as reasonably determined by the employer."
However, the revised rules include a MDOL determination that any leave requested 30 days prior to the leave is determined not to be an "undue hardship on the business." As the Chamber wrote in comments submitted today:
"The updated proposed rules regarding undue hardship are contrary to the statute and the statutory intent. Before discussing the ways in which these rules are contrary to the statute, we want to put into perspective the impact of these rules on businesses and employees in Maine. As noted below, although the statute allows an employer to determine when leave creates an undue hardship on the business, the updated proposed rules eviscerate that right. This issue has tremendous impact on employers and employees.
"The proposed rule parachutes a '30 day' provision into the rule where the statute specifically allows the determination to be made by the employer. Effectively a business will not be able to claim an undue hardship if an individual requests leave 30 days prior to the scheduled time. The Maine DOL should spend more time with Maine businesses and understand the hardships they are currently experiencing with labor and meeting the seasonality of Maine's economy.
"Just one example is the impact on the restaurant industry. There are approximately 3,360 restaurants in Maine. Many of these restaurants operate seasonally and earn the vast majority of their income over several months each summer. Many restaurant owners approached the Chamber with dire concerns over the limitations imposed by the draft rules on their ability to claim undue hardship when an employee takes leave. We would like to share their story with you.
"A small restaurant operates seasonally. At the height of the summer, the restaurant employs 30 people. In the winter, only several part-time employees are employed. The income made in 3 months in the summer finances the restaurant for the entire year. If the chef (or dishwasher) is out of work for 12 weeks during the summer, the owner simply cannot operate the restaurant. They cannot find a replacement on 30 days' notice (assuming notice is even provided) to work on a short-term basis without the security of continued employment. The owner will be forced to close the restaurant and lay off all of the other workers who were counting on that job. That is the reality of depriving employers in Maine of the ability to claim undue hardship."
MDOL's comment period on the second round of proposed rules ended today. The Maine State Chamber has provided testimony at a previous public hearings and written comments during the development of PFML rules this year with the goal of making Maine's PFML program more workable for employers and employees. In 2023, Maine's PFML program was directed to be established when legislation - L.D. 1964 - was passed and enacted into law.
"Maine's Paid Family and Medical Leave program rulemaking is one of the most significant regulatory initiatives in a generation and the Maine State Chamber of Commerce appreciates the previous revisions to reduce the tax on businesses that will never utilize the state program," said Patrick Woodcock, CEO and President of the Maine State Chamber of Commerce. "We continue to have strong concerns that the 'undue hardship' provision in the rulemaking fails to follow legislative language and empower businesses to determine undue hardship. The Maine Department of Labor needs to talk to small retail shops, lobstermen, and farmers if they believe that simply providing 30 days notice absolves the undue hardship on business when there is unexpected leave with Maine's seasonal economy. The MDOL should follow the plain language of the legislative language and allow Maine businesses to make these decisions."
The Chamber's written comments highlight the Undue Hardship provision's inconsistencies with statute and statutory intent, and the significant impact that, if not corrected, the Undue Hardship provision will have on employers and employees. The statute includes the following provision: "Use of such leave must be scheduled to prevent undue hardship on the employer as reasonably determined by the employer."
However, the revised rules include a MDOL determination that any leave requested 30 days prior to the leave is determined not to be an "undue hardship on the business." As the Chamber wrote in comments submitted today:
"The updated proposed rules regarding undue hardship are contrary to the statute and the statutory intent. Before discussing the ways in which these rules are contrary to the statute, we want to put into perspective the impact of these rules on businesses and employees in Maine. As noted below, although the statute allows an employer to determine when leave creates an undue hardship on the business, the updated proposed rules eviscerate that right. This issue has tremendous impact on employers and employees.
"The proposed rule parachutes a '30 day' provision into the rule where the statute specifically allows the determination to be made by the employer. Effectively a business will not be able to claim an undue hardship if an individual requests leave 30 days prior to the scheduled time. The Maine DOL should spend more time with Maine businesses and understand the hardships they are currently experiencing with labor and meeting the seasonality of Maine's economy.
"Just one example is the impact on the restaurant industry. There are approximately 3,360 restaurants in Maine. Many of these restaurants operate seasonally and earn the vast majority of their income over several months each summer. Many restaurant owners approached the Chamber with dire concerns over the limitations imposed by the draft rules on their ability to claim undue hardship when an employee takes leave. We would like to share their story with you.
"A small restaurant operates seasonally. At the height of the summer, the restaurant employs 30 people. In the winter, only several part-time employees are employed. The income made in 3 months in the summer finances the restaurant for the entire year. If the chef (or dishwasher) is out of work for 12 weeks during the summer, the owner simply cannot operate the restaurant. They cannot find a replacement on 30 days' notice (assuming notice is even provided) to work on a short-term basis without the security of continued employment. The owner will be forced to close the restaurant and lay off all of the other workers who were counting on that job. That is the reality of depriving employers in Maine of the ability to claim undue hardship."
MDOL's comment period on the second round of proposed rules ended today. The Maine State Chamber has provided testimony at a previous public hearings and written comments during the development of PFML rules this year with the goal of making Maine's PFML program more workable for employers and employees. In 2023, Maine's PFML program was directed to be established when legislation - L.D. 1964 - was passed and enacted into law.
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