NEW LAW: Michigan’s New Earned Sick Time Law

The Michigan Legislature recently adopted Michigan’s Earned Sick Time Act. This law, which was scheduled to be a ballot initiative (the Michigan Paid Sick Leave Initiative) in the November 2018 election, will require Michigan employers to provide 72 hours of sick leave per year to eligible employees. The new law will likely take effect on or about April 1, 2019*. Michigan employers should start preparations now to comply with this law as it will likely have a significant effect on their existing sick leave and PTO benefits plans.

Who is covered by Michigan’s Earned Sick Time Act?

All Michigan employers are covered by Michigan’s Earned Sick Time Act.  However, the size of the employer determines whether the sick leave provided is paid sick leave or unpaid sick leave.

All Michigan employers who employ 10 or more employees will be required to provide employees with paid sick leave.

All Michigan employers who employ 9 or fewer employees will be required to provide employees with both paid and unpaid sick leave.

How is an employer’s employee headcount determined?

According to Michigan’s Earned Sick Time Act, the employee headcount is determined by the number of individuals on the employer’s payroll during any 20 or more calendar workweeks in either the current or preceding calendar year.

Are any employees excluded from sick leave?

Yes, the following types of employees are excluded from receiving “sick leave”:

  • Individuals employed by the federal government.

How much sick leave must be provided?

Once the new law goes into effect (estimated to be around April 1, 2019*), eligible employees of Michigan employers will start accruing sick leave. Sick leave benefits will accrue at a rate of 1 hour for every 30 hours worked by the employee. For new employees, accrual begins on the first day of employment.

As the law is currently written, there is no ability for Michigan employers to front-load sick leave to their employees.

Is there a limit to the amount of sick leave an employee can accrue?

No, as the law is currently written, there is not an annual accrual cap for sick leave.  Instead, employees accrue one leave hour for every 30 hours worked.

For exempt employees, Michigan’s Earned Sick Time Act assumes that exempt employees work 40 hours each workweek, unless the employee’s normal workweek is less than 40 hours, in which case the number of hours in the normal workweek should be used.

Are employers required to carryover unused, accrued sick leave from year to year?

Yes, unused, accrued sick leave must carry over from year to year.

Is there a limit to the amount of sick leave an employee can use in a given year?

Yes, employers must allow employees to use at least 72 hours of sick leave in a year.  Whether or not the sick leave used is paid sick leave or unpaid sick leave depends on the employer’s size.

For “small employers” (those with 9 or fewer employees), employees are entitled to use 40 hours of paid sick leave and 32 hours of unpaid sick leave in a year.

For “large employers” (those with 10 or more employees),  employees are entitled to use 72 hours of paid sick leave

How is a “year” defined for purposes of sick leave?

A “year” is defined as a regular and consecutive 12–month period as determined by the employer.

When are employees eligible to use sick leave?

For those employees hired after April 1, 2019, Michigan’s Earned Sick Time Act imposes a 90-calendar day waiting period before a newly hired employee can use paid sick leave benefits. For all other employees, they are allowed to use sick leave benefits as they accrue.

What can sick leave be used for?

Employees can use sick leave for the following purposes:

  • The employee’s or the covered family member’s mental or physical illness, injury, or health condition; medical diagnosis, care, or treatment of the employee’s or covered family member’s mental or physical illness, injury, or health condition; or preventative medical care for the employee or covered family member;
  • Certain absences where the employee or covered family member is a victim of domestic violence or sexual assault;
  • Meetings at the employee’s child’s school or place of care related to the child’s health or disability, or the effects of domestic violence or sexual assault on the child; or
  • Absences due to certain public health emergencies.

Who is considered a “covered family member” under Michigan’s Earned Sick Time Act?

A “covered family member” is defined as the employee’s:

  • Child (including a biological, adopted, foster, or step child of the employee, a child for whom the employee has legal or physical custody or guardianship, and a child for whom the employee stands in loco parentis, regardless of the child’s age),
  • Parent (including a biological, adoptive, foster or step parent of the employee or the employee’s spouse or the employee’s domestic partner, the legal guardian of the employee or employee’s spouse or the employee’s domestic partner, and an individual who acted as a parent or stood in loco parentis to the employee when the employee was a minor),
  • Spouse or domestic partner,
  • Grandparent,
  • Grandchild, and
  • Siblings (including biological, adoptive, and foster relationships)
  • Any other individual related by blood or affinity whose close relation to the employee is the equivalent of a family relationship.

What are the employee’s notice requirements before using sick leave?

When the use of sick leave is foreseeable, employees may be required to provide the employer “reasonable advanced notice” (no more than 7 days) of the need to use sick leave.

When the use of sick leave is not foreseeable, employees may be required to provide notice of the need to use sick leave “as soon as practicable”.

Can employers require that employees provide documentation verifying their need for sick leave?

Yes, employers may require that an employee provide documentation verifying their need for sick leave if the employee is absent for more than three consecutive days.

For “sick” time purposes, documentation signed by a health care professional indicating that leave is necessary is considered reasonable.

For “safe” time purposes, one of the following documentation types – selected by the employee – is considered reasonable:

  • a police report;
  • a signed statement from a victim and witness advocate; or
  • a court document indicating that the employee or covered relation is involved in legal action related to domestic violence or sexual assault.

In addition if an employer chooses to require documentation for the employee’s use of earned sick time, the employer is responsible for paying all out-of-pocket expenses the employee incurs in obtaining the documentation.  If the employee has health insurance, this includes paying pay any costs charged to the employee by a health care provider for providing the specific documentation required by the employer.

Are employers required to pay out unused sick leave at termination of employment?

No, employers are not required to pay out unused, accrued sick leave at termination of employment.  However, if an employee is rehired within 135 days of separation by the same employer, previously accrued paid sick and safe leave time that had not been used must be reinstated.

What are the employer’s notice requirements relating to paid sick leave?

An employer must give employees written notice of their right to paid sick leave either by April 1, 2019 or on the employee’s date of hire – whichever is later.   The written notice must include, at a minimum, all of the following information:

  • the amount of leave required to be provided under the law;
  • the employer’s choice of how to calculate a “year;”
  • the terms under which leave may be used;
  • that retaliatory personnel action against an employee for requesting or using leave is prohibited; and
  • the employee’s right to bring a civil action or file a complaint with the Department of Licensing & Regulatory Affairs for any violation.

Employers are also required to display a poster regarding certain provisions under the Act in a conspicuous place in the workplace that is accessible to employees.

Both the notice and the poster must be provided/posted in English, Spanish, and any language that is the first language spoken by at least 10% of the employer’s workforce, as long as the Department of Licensing & Regulatory Affairs has translated the notice or poster into such language.

What should Michigan employers do to prepare for the new law?

As stated above, Michigan’s Earned Sick Time Act is currently estimated to go into effect on April 1, 2019. In order to prepare for this new law, employers should prepare paid sick leave policies and plan to include those policies in their 2019 Employee Handbook. In addition, employers with existing sick leave or PTO policies should check their policies to verify that they are compliant with this new law.

Please be advised that due to the manner in which this particular law was passed, the Legislature does have the opportunity to amend the law prior to its effective date.  It is recommended that employers be on the lookout for these amendments.

We will keep you posted about this law as it draws closer to the effective date.

——————————–

*  The ballot initiative would have the new minimum wage going into effect immediately after the November election.  However, since this measure was not adopted by the Michigan voters, under Michigan law, this law will take effect 90 days after the current legislative session ends (which is currently scheduled for December 31, 2018). Therefore, the effective date should be around April 1, 2019, unless the Legislature adjourns earlier than expected.