On September 5, 2018, Michigan became the 11th state to enact a mandatory paid sick leave law — the Earned Sick Time Act. The act was a citizen petition-initiated measure that the state legislature approved. Under the act, employees accrue a minimum of one hour of earned sick time for every 30 hours worked. All employees (full-time or part-time) would be entitled to use 72 hours in a year, but whether that time is paid or unpaid depends on the size of the employer. Employees of “small businesses” (employers with fewer than 10 employees) may accrue up to a maximum of 40 hours of paid sick time and 32 hours of unpaid sick time each year unless the employer selects a higher limit. Employees of businesses with 10 or more employees may accrue up to 72 hours of paid sick time per year unless the employer selects a higher limit. Earned sick time carries over from year to year, but the annual maximums still apply. An employer’s paid leave policies that provide leave in at least the same amounts required by the act are sufficient to maintain compliance.
An employee may use earned sick time for his or her own mental or physical illness or condition, medical diagnosis or treatment, preventative medical care, relocation related to domestic violence or sexual assault, participation in criminal proceedings related to domestic violence or sexual assault, and other categories set forth under the act. Employees may also use earned sick time to support a family member for similar reasons.
There are many similarities between Michigan’s Earned Sick Time Act and other paid sick leave laws or intermittent leave under the FMLA, but the act is more administratively burdensome in some ways:
- Employers can choose how to calculate a “year” under the act using any consecutive, twelve-month period, but employees may use earned sick time in the smallest increment that the employer’s payroll system uses to account for other absences.
- While an employer may require up to 7-days’ notice for foreseeable leave, notice for unforeseeable leave need only occur “as soon as practicable.”
- Documentation to support the use of earned sick time can only be required for use of more than 3 days and that documentation is limited to a statement that the time is necessary. It should not include a description of the illness or details of the violence.
- If an employer requires documentation, it is responsible for paying all out-of-pocket expenses the employee incurs in obtaining the documentation. Further, an employer cannot delay commencement of the leave based on a failure to receive documentation
- Employers must provide written notice of an employee’s rights under the act.
- Employers may not retaliate against an employee for engaging in activity protected by the act. Importantly, there is a rebuttable presumption that an employer violated the act if it takes any adverse personnel action against an employee within 90 days after the employee engages in protected activity.
The act officially takes effect in March 2019, unless the employer has employees subject to a collective bargaining agreement (CBA). In that instance, the act applies to employees subject to the CBA as of the date the CBA expires, regardless of any statement that the CBA will continue in full force until a future date or event (such as the execution of a new CBA).
Importantly, if the legislature had not approved the initiative, it would have appeared on the state ballot on November 6, 2018. Thus, there has been some discussion that the legislature passed the act to keep it off the ballot and may amend it in the near future. Stay tuned.