As we reported in September, Michigan legislators passed a paid sick and safe leave law that will require employers to provide up to 72 hours of paid sick leave to eligible employees each year. But before that law could go into effect in March 2019, those same legislators passed Senate Bill 1175 which significantly waters down the benefits. The revisions were signed into law by Governor Rick Snyder, amending the earlier Earned Sick Time Act.
Fewer Employers and Employees Covered by the Law
The Paid Medical Leave Act, as the law is now titled, applies only to employers with 50 or more employees, similar to the federal Family and Medical Leave Act (FMLA), rather than to all employers in the state. According to media estimates, this change means that more than 160,000 small Michigan businesses with upwards of 1 million workers will not be covered by the state’s paid sick leave law.
In addition, certain employees will not be entitled to paid sick time under the revised law. Specifically, the amendment excludes employees who are exempt from overtime under the so-called white-collar exemptions under the Fair Labor Standards Act (FLSA), namely the executive, administrative, professional, and outside sales exemptions. Also excluded are part-time employees who work less than 25 hours per week.
Other categories of employees who are not covered by the new law include:
- employees working 25 or fewer weeks per year;
- private sector employees covered by a collective bargaining agreement;
- air carrier flight crew members;
- employees subject to the Railway Labor Act;
- those working for the U.S. government or another state;
- employees whose primary work location is outside of Michigan;
- new employees paid a training hourly wage per the Michigan Improved Workforce Opportunity Wage Act;
- those employed by a temporary help firm; and
- certain variable hour employees.
Lower Paid Sick Time Accruals
The amount of paid sick time that employers must allow eligible employees to accrue and use is considerably lower under the revised law than under the previously passed version of the law. Instead of accruing one hour of paid sick time for every 30 hours worked with a limit of 72 hours of paid earned sick time permitted to be used per year, the amendment lowers the accrual to one hour of paid medical leave for every 35 hours worked, limited to 40 hours per benefit year. In addition, an employer may limit the accrual to one hour of paid leave per calendar week, regardless of the number of hours worked that week. If employers do not want to calculate accruals, they are permitted to frontload at least 40 hours at the beginning of a benefit year. The amount of accrued paid sick time that may be carried over from one year to the next is also diminished from 72 to 40 hours.
Eliminated School Meetings as a Qualifying Reason
One of the reasons for leave has been eliminated. Eligible employees will not be able to use 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.
Posting, Notices, and Recordkeeping
The posting requirement has not changed and the Michigan Department of Licensing and Regulatory Affairs will make free sample posters available to employers. The revised law, however, eliminates a requirement that employers provide a written notice to each employee at the time of hiring (or by April 1, 2019 for existing employees). In addition, the time period that employers must retain certain records is reduced from three years to one year.
Legal Challenge May Arise
Now that Michigan Governor Snyder signed the new law, groups that oppose the revisions will likely file legal challenges to the process under which the amendment was passed. To recap, in September 2018, Michigan legislators passed the Earned Sick Time Act to avoid having the citizen-initiated paid sick leave measure on the November ballot. If paid sick leave had been approved through the ballot measure, the legislature would have needed a three-quarters vote to make any changes. But because the legislators passed the bill in general session, the legislature needed only a simple majority to amend the bill.
Supporters of the original ballot measure contend that it violates the state constitution for the legislature to amend a law in the same legislative session in which the original law passed. A 1964 Attorney General (AG) opinion letter supported their position, indicating that although modifying an initiated law in the same session that it passed in is not an issue that has been ruled upon by the courts, it likely would violate “the spirit and letter” of the initiative process. However, the current Michigan AG recently issued his own legal opinion, concluding that although the state constitution requires a three-quarters vote in both chambers to change voter-approved laws, it imposes no express limitations on amending citizen-initiated laws passed by the legislature. Advocates of paid sick leave have already expressed their intent to challenge this perceived procedural end-around by the GOP-majority in the Michigan Legislature and may even launch a new ballot initiative on paid sick leave for the 2020 election.
Michigan employers must prepare to provide paid sick leave law prior to the effective date at the end of March 2019 (91 days after the adjournment of the 2018 legislature). Suggested preparations include updating employee handbooks and sick leave policies, training supervisors, human resources personnel, and employees on the rights and responsibilities under the law, and posting the state poster in a conspicuous place, when available.