Michigan’s New Paid Sick Leave Act
Michigan’s new paid sick leave act took effect in late March, 2019, but many people still do not know what it is or how it works. This post will attempt to explain and answer some questions about the new law from a Gold Star Law employment attorney.
History of the law
On September 5, 2018, the Michigan legislature voted to approve a ballot initiative known as the Earned Sick Time Act (“ESTA”). By passing the law through the state congress instead of letting it go on the ballot for the November election, the Michigan legislature was allowed to change the law by a simple majority instead of a “super majority,” meaning it was much easier to pass the initiative to keep control over its final form instead of risking voters approving it and having very little opportunity to change it. In December, the state legislature amended and the governor approved the Paid Medical Leave Act, or PMLA, which is the final amended version of the paid sick leave law effective March, 2019.
Who is covered by the law
Probably the biggest change between the ESTA and the PMLA is who is covered. The PMLA only applies to Michigan employers with 50 or more employees. As far as the employees’ requirements, the PMLA only covers employees who worked an average of 25 or more hours per week in the immediately preceding calendar year and primarily work in Michigan. Furthermore, the PMLA does NOT cover employees who are exempt from the overtime provisions of the Fair Labor Standards Act, who work in the private sector and are covered by a union collective bargaining agreement, who work less than 25 weeks in a year, and certain other types of employees.
Earning paid sick time off
Accrual, or earning, of paid time off under the PMLA works as follows:
-Employees that qualify for PMLA leave can start accruing time at the start of their employment or the date the PMLA takes effect, whichever is later (so when the PMLA takes effect, NO ONE will already have time earned under the law).
-Time off under the PMLA is accrued at a rate of one (1) hour earned for every thirty-five (35) hours worked, and employers are not required to allow an eligible employee to accrue more than one (1) hour of paid leave per week. An eligible employee working 70 hours per week is entitled to accrue the same amount of leave as an employee working 38 hours per week.
-Employers can cap paid medical leave accrual at 40 hours per year.
-Employers can cap paid medical leave carry-over at 40 hours per year, meaning no matter how much paid medical leave you have available at the end of a year, an employer does not have to let you start the next year with more than 40 hours.
-An employer can opt to “frontload” the 40 hours of paid medical leave, meaning eligible employees start with 40 hours already accrued, in which case an employer is not required to carry over leave from the prior year OR allow an employee to accrue more leave during the year.
-Employers are not required to pay out accrued medical leave that is not used, whether at the end of a calendar year or the end of employment.
Paid medical leave usage
Paid medical leave usage under the PMLA works as follows:
-Employers can cap an employee’s usage of paid medical leave to 40 hours per year.
-The PMLA allows employers to have a waiting period of 90 days for new hires to start using their paid leave. Eligible new hires can still accrue paid medical leave during their first 90 days of employment, but an employer does not have to let them use it during that time.
-An employee may use their PMLA time in one-hour increments unless the employer already has an increment policy in place. Then, they must follow that policy.
-Employers must allow eligible employees to use accrued paid medical leave for the employee’s own mental or physical illness or injury, including preventative and other medical care, an eligible employee’s family member’s mental or physical illness or injury, including preventative and other medical care, treatment and other certain activities relating to domestic violence or sexual assault of the employee or an employee’s family member, or closure of the employee’s primary workplace or an employee’s child’s school or place of care.
-For the reasons for leave listed above, a “family member” is a child, parent, spouse, grandparent, grandchild, or sibling.
-Employers can require employees taking leave under the PMLA to comply with the employer’s usual and customary notice and procedural requirements for leave, and can discipline employees who fail to do so. However, an employer must allow an eligible employee at least 3 days to provide medical documentation for leave if requested.
-Employers must pay eligible employees using paid medical leave at least their normal hourly rate of pay, or minimum wage if the employee’s regular rate of pay is less than minimum wage (for example, a tipped employee).
Presumption of Compliance
The PMLA says there is a “rebuttable presumption” of compliance for employers that give employees at least 40 hours of paid leave each year. This means that if a covered employer already has a policy that gives eligible employees at least 40 hours of paid leave per year, it is assumed that the employer’s policy is sufficient and the employer is in compliance with the PMLA. However, this is a “rebuttable” presumption, which means that an employee could argue that the employer’s policy does not give them all the rights they would otherwise have under the PMLA, and could win. For example, if an employer had a policy that did not allow employees to take ANY medical leave until they had worked at least 9 months for the employer, even if the total amount of leave given is more, the employer would not be in compliance with the PMLA because an eligible employee should be able to start taking paid medical leave after 90 days of employment.
However, if the employer has a policy that gives eligible employees 40 or more hours of paid leave and does not specify how the leave must be used, the employee is not also entitled to additional paid sick leave under the PMLA. If an employee decides to use paid leave that could be used as sick leave for a vacation or something else, the PMLA does not require an employer to provide the employee with another week of paid leave.
Employers can always do MORE
Most companies that employ 50 or more employees already have some sort of paid leave policy, and most of those policies are more generous than the PMLA. The PMLA establish a minimum that covered employers must give eligible employees in terms of paid medical leave, but it is certainly not a limit on what employers can offer. Employers are free to offer more than 40 hours of leave per year, and to allow employees to earn that leave faster. Employers are also allowed to let employees use their paid leave for more reasons that those listed in the PMLA. As long as “eligible employees” of “covered employers” get at least what they would get under the PMLA, a more generous policy is allowed.
Unlike many other employment laws, the PMLA does not create a private cause of action. Employees who are victims of PMLA violations cannot bring a lawsuit in court, but they can report the violation within 6 months to the state. The state will investigate the claim and impose penalties if appropriate.
You can contact Gold Star Law if you would like more information on this Michigan law.