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Is Your Company Ready for Michigan’s Earned Sick Time Act?

Lynn Vuketich Luther
9/28/18

hand holding glass of water, another holding pills    On September 5, 2018, the Michigan Legislature approved the Earned Sick Time Act, which will require all employers, regardless of size, to permit employees to accrue paid time off to cover absences for medical or other personal reasons.  The Earned Sick Time Act is scheduled to go into effect 90 days after the current legislative session ends, which is approximately April 1, 2019.  If an employer has employees covered by a collective bargaining agreement, the Act would apply on the date the collective bargaining agreement expires.

    All full and part time employees will accrue a minimum of one hour of earned sick time for every 30 hours worked and may use up to 72 hours of accrued leave per year.  Employers with fewer than 10 employees must permit employees to accrue up to 40 hours of paid sick time and 32 hours of unpaid sick time each year, and paid leave must be granted before the period of unpaid leave. Companies with 10 or more employees must provide paid leave for the full 72 hours accrued by employees.  Earned sick time would carry over from year to year, but the annual maximums will apply. 

    The applicability of the Earned Sick Time Act mirrors some of the bases for leave under the FMLA, but also differs in several respects.  Employees are permitted to use earned sick time for the following reasons:

  1. The employee’s mental or physical illness, injury, or health condition; medical diagnosis, care, or treatment of the employee’s mental or physical illness, injury, or health condition; or preventative medical care for the employee.
  2. For the employee’s family member’s mental or physical illness, injury, or health condition; medical diagnosis, care, or treatment of the employee’s family member’s mental or physical illness, injury, or health condition; or preventative medical care for a family member of the employee.
  3. If the employee or the employee’s family member is a victim of domestic violence or sexual assault, for medical care or psychological or other counseling for physical or psychological injury or disability; to obtain services from a victim services organization; to relocate due to domestic violence or sexual assault; to obtain legal services; or to participate in any civil or criminal proceedings related to or resulting from the domestic violence or sexual assault.
  4. 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; or
  5. For closure of the employee’s place of business by order of a public official due to a public health emergency; for an employee’s need to care for a child whose school or place of care has been closed by order of a public official due to a public health emergency; or when it has been determined by the health authorities having jurisdiction or by a health care provider that the employee’s or employee’s family member’s presence in the community would jeopardize the health of others because of the employee’s or family member’s exposure to a communicable disease, whether or not the employee or family member has actually contracted the communicable disease.

    An employer’s existing policies that provide paid leave in at least the same amounts required by the Act are sufficient to satisfy the Act’s requirements, but there are several aspects of that Act that will require revision of an employer’s existing policies. For example, employers must select how the twelve-month accrual and use period will be calculated, which will require employers to evaluate whether the period should mirror existing leave or paid time off policies.   Employees may use earned sick time in the smaller of hourly increments or the smallest increment that the employer’s payroll system uses to account for other absences, so those policies must be reconciled. The differing notification periods for available leaves must also be specified.  While the FMLA can require up to 30 days’ notice for a foreseeable leave, the Earned Sick Time Act permits only up to 7-days’ notice for foreseeable leave.  Like the FMLA, notice for an employee’s unforeseeable leave need only occur “as soon as practicable.”

   An employer may require documentation to substantiate the need for leave, but only when an employee uses three or more consecutive days of earned sick time. In those cases, an employer only may request reasonable documentation that the earned sick time was used for a purpose recognized by the Act.  For a medical leave, the documentation request is limited to a signed statement from a health care professional stating that the time off is necessary.  Employers may not require disclosure of the details of the employee's or family member’s health condition. If an employee is required to provide documentation, the employer must pay all out-of-pocket expenses the employee incurs in obtaining it, including any costs to the employee’s health care provider that are not covered by the insurer. Employers may not delay the commencement of earned sick time when the company has not received the documentation. 

    Like most leave laws, employers are prohibited from retaliating against an employee for requesting leave or engaging in activity protected by the Earned Sick Time Act. However, the Act goes even farther and creates a rebuttable presumption of retaliation if an employer takes an adverse action against an employee within 90 days of certain specified activities, including filing a complaint alleging a violation of the Act, informing any person about an employer’s alleged violation, cooperating in an investigation of an alleged violation, opposing any employer action that is prohibited under the Act or informing any person of his or her rights under the Act. 

    Employers must provide written notice of an employee’s rights under the Act to their employees by April 1, 2019, and then to new employees at the time of hire.  The notice must include the amount of leave provided under the Act, the employer’s choice of how to calculate a “year,” the terms under which leave may be used, the prohibition of retaliatory action against an employee for requesting or using leave and the employee’s right to bring a civil action or file a complaint with the Department of Licensing and Regulatory Affairs for any violation.  The notice also must be posted along with an employer’s other fair employment practice postings.  Records showing earned sick time accrual and use must be maintained for three years, and those records will be subject to audit by the Department.

    Companies will need to adopt an Earned Sick Time Act policy that documents the administrative requirements of the Act, including the year used to calculate leave eligibility and any notification requirements.    Employers also should review their existing employment policies to verify that the FMLA policy, other leave of absence provisions, paid time off policies, attendance procedures and code of conduct comply with the provisions of the Earned Sick Time Act and will not result in violations of the Act or retaliation claims.  Before fully implementing any policy changes, employers should also watch for legislative amendments before the April 2019 effective date because further amendments are anticipated. 

    Should you have any questions regarding the Earned Sick Time Act, please contact Lynn Vuketich Luther.

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Disclaimer: This alert has been prepared by Eastman & Smith Ltd. for informational purposes only and should not be considered legal advice. This information is not intended to create, and receipt of it does not constitute, an attorney/client relationship.

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