NEW LAW: Michigan Amends Earned Sick Time Act

Earlier this year, we reported that Michigan had passed a new paid sick leave law (see NEW LAW: Michigan’s New Earned Sick Time Law).  In this article, we cautioned employers that since the law that was initially passed was scheduled to be a ballot initiative (the Michigan Paid Sick Leave Initiative) in the November 2018 election, the Michigan legislature would likely amend the law (and in amending the law, would make substantial changes to the requirements).

Well, the Michigan legislature did not disappoint.  On December 14, 2018, Michigan Governor Rick Snyder signed Senate Bill 1175 (the Paid Medical Leave Act) into law.  This new law amends and greatly overhauls the Michigan paid sick and safe time law as follows:

 

Summary of Change Comparison between
September 2018 — Michigan Earned Sick Time Act December 2018 — Michigan Paid Medical Leave Act
Name of the Law The original name of the law was the Earned Sick Time Act. The amendment changes the name of the law to the Paid Medical Leave Act
Definition of “employer” for purposes of providing paid sick leave The original law required ALL employers in Michigan to provide sick leave to employees. The amended law only applies to employers who employ more than 50 employees — excluding the United States government, another state, or a political

subdivision of another state.

Definition of “employee” eligible to receive paid sick leave The original law extended paid sick leave benefits to all employees of an employer (except those employed by the US government). The amended law defines an eligible employee as an employee from “whom the employer is required to withhold for federal income tax purposes” but expressly excludes:

 

·      Exempt employees

·      Employees who are covered by a collective bargaining agreement.

·      Individuals employed by the United States government or another state’s government.

·      An individual whose primary work location is outside of Michigan.

·      Employees who are paid the training wage under the Improved Workforce Opportunity Act.

·      An individual who works at a temporary staffing agency.

·      An individual employed by an employer for 25 weeks or fewer in a calendar year for a job scheduled for 25 weeks or fewer.

·      An individual who worked, on average, fewer than 25 hours per week during the preceding year.

·   Variable hour employees.

Definition of “family member” The original law defined “family member to include:

·   Biological, adopted or foster child, stepchild or legal ward, child of domestic partner, child in loco parentis.

·   Biological parent, foster parent, stepparent, or adoptive parent or legal guardian of employee or spouse.

·   An individual to whom the employee is legally married per the laws of any state.

·   A grandparent or grandchild.

·   Biological, foster or adopted sibling.

·   Any other individual related by blood or affinity whose close association with the employee is the equivalent of a family relationship.

The amended law limits the definition of “family member” to the following:

·   A biological, adopted or foster child, stepchild or legal ward, or a child to whom the eligible employee stands in

·   loco parentis.

·   (A biological parent, foster parent, stepparent, or adoptive parent or a legal guardian of an eligible employee or an eligible employee’s spouse or an individual who stood in loco parentis when the eligible employee was a minor child.

·   An individual to whom the eligible employee is legally married under the laws of any state.

·   A grandparent.

·   A grandchild.

·   A biological, foster, or adopted sibling.

 

The new definition excludes

·   Children of an employee’s domestic partner.

·   Parents of an employee’s domestic partner.

·   An employee’s domestic partner.

·   Any other individual related by blood or affinity whose close association with the employee is the equivalent of a family relationship.

The amount of paid sick leave provided in a year The original law provided paid sick leave as follows:

·   1 hour for every 30 hours worked for employers with 10 or more employees

·   1 hour for every 40 hours worked for employers with less than 10 employees

 

Employers could limit the accrual of paid sick leave to 72 hours per year.

The amended law changes the paid sick leave accrual rates as follows:

·   Eligible employees accrue 1 hour for every 35 hours worked

·   Employers can limit accruals to one hour per calendar week

·   Employers can limit the accrual of paid sick leave to 40 hours per year.

The amount of paid sick leave an employee can use in a year The original law required employers to allow employees to use up to 72 hours of paid sick leave per year. The amended law requires employers to allow employees to use up to 40 hours of paid sick leave per year.
The amount of unused paid sick leave an employee can carryover from year to year The original law required employers to carry over all unused paid sick leave from year to year. The amended law limits the amount of unused paid sick leave an employer is required to carryover to 40 hours per year.

 

In addition, if an employer “frontloads” all 40 hours of paid sick leave, then no carryover of unused paid sick leave is required.

Finding a replacement The original law prohibited employers from requiring an employee to find a replacement as a condition of using paid sick leave The amended law removed this prohibition.
Reasons for taking paid sick leave The original law allowed employees to take paid sick leave for meetings at a 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. The amended law does not allow employees to use paid sick leave for that purpose.

 

Instead, employees may only use paid sick leave for the following purposes:

·   Employee’s mental or physical illness.

·   The employee’s family member’s mental or physical illness.

·   Medical care, counseling, relocation, or participating in criminal or civil proceedings related to the employee or employee’s family member being the victim of domestic violence or sexual assault.

·   Closure of the employee’s place of work due to a public health emergency, to care for a child whose school or place of care has been closed due to public health emergency, or if it has been determined by the health authorities that the employee or their family member needs to stay out of public due to exposure to a communicable disease.

Providing employer with notice of paid sick leave use The original law broke apart the notice requirements into two components:

·   Use of paid sick leave is foreseeable: Employer may require that an employee give up to 7 days’ notice

·   Use of paid sick leave is unforeseeable: Employer may require that an employee give notice as soon as practicable

The amended law requires employees to follow an employer’s usual policies for

requesting leave.

 

In addition, employers may discipline an employee for failing to follow these procedures.

Reinstatement of paid sick leave to rehired employee The original law required employers to reinstate previously accrued unused earned sick time to an employee who is rehired within 6 months of termination of employment. The amended law does not require employers to reinstate any previously accrued unused earned sick time to an employee who is rehired by the company.
Accrued sick time and a successor employer The original law required a successor employer to honor paid sick leave banks of employees of the former employer (in other words, the employees retain their accrued

unused sick time).

The amended law removed this requirement.
Payout of paid sick leave at the end of the year The original law did not address this topic. The amended law does not require an employer to pay out unused time at the end of the benefit year.
Retaliation and/or discrimination for using paid sick leave The original law contained hefty anti-retaliation and anti-discrimination provisions protecting an employee’s ability to use paid sick leave without fear of retaliation. The amended law removed these provisions.

It is anticipated that the new Michigan Paid Medical Leave Act will go into effect on April 1, 2019.  It is recommended that affected employers (i.e. those with more than 50 employees) prepare for this new law.