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Hot Topic in the Law: Earned Sick Time Act

January 30, 2019

On September 5, 2018, the Michigan Senate and House of Representatives passed the Earned Sick Time Act, MCL 408.963.  However, shortly after the election, the Legislature substantially amended the Act and renamed it the “Paid Sick Leave Act.” (The “Amended Act”). The Amended Act is expected to take effect on the 91st day after the final adjournment of the 2018 legislative session.

 

In response to the Amended Act, employers may need to change their leave of absence policies and procedures, their employee handbooks, and their employment contracts in order to comply with the law.

 

Beginning April 1, 2019, employers must provide employees paid sick leave for an employee’s personal health needs, a family member’s health needs, or during the closure of the employee’s primary worksite by order of a public official due to a public health emergency. However, certain employees, including but not limited to: employees exempt from FSLA overtime, union employees, employees who work primarily outside of Michigan, temporary employees (who work less than 25 hours per week), and part-time employees who work fewer than 25 hours per week); and “variable hour” employees are excluded from the benefits of the Amended Act.

The Amended Act caps the required annual paid medical leave to 40 hours per year.  Employers subject to the Act now have two options for providing paid medical leave:

  1. Permit accrual of paid medical leave at the rate of at least 1 hour of paid leave for every 35 hours worked. (Capped at no more than 1 hour of accrual per calendar week or more than 40 hours of accrual per benefit year); or

  2. Provide 40 hours of accrued medical leave at the beginning of the benefit year.

Under Option 1, unused paid medical leave is carried over from year to year, but each employee is limited to the use of 40 hours per year.

 

Under Option 2, the time does not carry over from year to year.

 

An employer may require an employee hired after April 1, 2019 to wait until the ninetieth calendar day after commencing employment before using accrued earned sick time.

Employers that have a paid leave policy in place that provides leave in at least the same amounts of paid leave as required by the Act are likely in compliance with the Act.

 

The Amended Act includes a rebuttable presumption that the employer is in compliance with the Act if the employer provides 40 hours of paid leave to an eligible employee each year.

 

There is no universal solution to meet the requirements of the Amended Act. At minimum, covered employers should adopt a paid medical leave policy for eligible employees that complies with the laws new requirements.

 

If you have a question regarding the Paid Sick Leave Act, please contact Nancy K. Chinonis, employment attorney, at Cline, Cline & Griffin, P.C. (810)-232-3141.

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