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Legal Update

    Human Resources Group of West Michigan

    Legal Update – June 2018

    By Nathan D. Plantinga and Daniel R. Schipper

    Miller Johnson

    Paid Sick Leave may be on
    the horizon for michigan employers

    The likelihood of a ballot proposal legalizing recreational marijuana in Michigan has created quite a buzz among employers.  But that may not be the only contentious proposal for employers on the November ballot.  A Michigan interest group called Time to Care has collected enough signatures to submit a ballot proposal for the passage of the Earned Sick Time Act, a law that would require Michigan employers to provide paid sick time.

    The Earned Sick Time Act would require businesses with 10 or more employees to provide at least 72 hours of paid sick leave per year to employees who work a requisite number of hours.  Companies with less than 10 employees would have to provide at least 40 hours of paid sick leave per year, as well as 32 hours of unpaid sick leave per year.  Employees of both large and small companies would earn at least one hour of paid sick leave per 30 hours worked, until they reached the annual cap set by the law or their employer. 

    The proposed Act specifies that the rate of pay for sick time leave must be at least equivalent to the Michigan minimum wage.  Employers would only be required to pay employees for their accrued sick leave when the leave is actually taken.  In other words, employers would not have to pay employees for their accrued leave on an annual basis, or when their employment comes to an end.

    Under the Act, employees must be permitted to use their earned sick leave for their own illness, to care for an ill family member, to seek treatment for sexual assault or domestic violence, to care for a family member who was a victim of sexual assault or domestic violence, or to attend meetings at their child’s school related to the child’s illness or disability, among other things. 

    Notably, companies with any paid leave provisions as good as, or better than, those required by the Act would not be required to take add an additional sick leave policy.  Thus, even paid leave provisions not necessarily directed at sick time (for example, a paid vacation policy), would satisfy the requirements of the Act as long as employees could use that paid leave for the purposes provided in the Act. 

    None of the above provisions are too surprising – they would be expected in almost any law requiring employers to provide paid sick leave.  But the Act contains a few other provisions that are causing employers some heartburn.  For example:

    • The Act specifies that employers may only require supporting documentation from an employee when the employee uses earned sick leave for more than 3 days in a row.  Obviously, this implies that employers cannot ask for documentation to justify sick leave of 3 days or less. 
    • The Act contains an anti-retaliation provision that includes a presumption of retaliation under certain circumstances.  Specifically, the law states that there is a rebuttable presumption of retaliation whenever an employer takes an adverse employment action within 90 days after an employee:  (a) files a complaint with the State alleging a violation of the Act; (b) informs any person about an employer’s alleged violation of the Act; (c) cooperates with the State or another person in an investigation or prosecution of any alleged violation of the Act; (d) opposes any policy, practice, or action prohibited by the Act; or (e) informs any person of his or her rights under the Act.
    • The Act permits employees and the State of Michigan to file a lawsuit against an employer who violates an employee’s rights under the Act.  If a violation is found, the Act authorizes reinstatement for discharged employees, as well as the recovery of monetary damages, including payment of earned sick time, back pay for employees who were discharged or demoted, an equal additional amount as liquidated damages, and costs and attorneys’ fees.  

      It is provisions such as these that might prompt the Michigan Legislature to propose a competing Earned Sick Time Act with more employer-friendly provisions.  Because this Act has been presented as a ballot-proposal, the Legislature has the option of passing the bill as is, proposing a competing bill, or rejecting the bill entirely. 

      If the Legislature fails to pass the bill, or a competing version of it, the proposal will be placed on the ballot in November.  If voters approve of the law, it will go into effect as it is currently written. We suspect many employers may have strong feelings about whether this Act would serve their best interests – and the best interests of the majority of their employees!  If so, now is the time to let your voice be heard.

      For questions about Earned Sick Time Act or other matters, please contact the authors of this article:

      Nathan D. Plantinga (616) 831-1773; plantingan@millerjohnson.com

      Daniel R. Schipper (616) 831-1748; schipperd@millerjohnson.com

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