On December 14, Michigan Governor Rick Snyder signed the Paid Medical Leave Act into law. The act requires covered employers to provide paid sick leave to many of their Michigan-based employees. Below are answers to frequently asked questions about the new law.
Q: When will Michigan’s new Paid Medical Leave Act take effect?
A: The anticipated effective date is April 1, 2019.
Q: Which companies are covered by the act?
A: Persons, firms, businesses, educational institutions, nonprofit agencies, corporations, limited liability companies, government entities, and other entities that employ 50 or more individuals are covered employers. The act does not apply to the United States government, other states, or political subdivisions of other states.
Q: Which workers are eligible to use paid sick leave under the act?
A: The act defines an eligible employee as “an individual engaged in service to an employer in the business of the employer from whom an employer is required to withhold for federal income tax purposes.” As a practical matter, this excludes independent contractors from eligibility under the act.
Q: Are there any employees who are not eligible to take leave under the act?
A: The act has 12 specific exemptions. Employees within any of these exemptions are not eligible for paid medical leave. These exemptions include (1) employees exempt from statutory overtime under the Fair Labor Standards Act (FLSA) because they are employed in a bona fide executive, administrative, or professional capacity, or in the capacity of an outside salesman as defined by the FLSA; (2) employees in the private sector who are covered by a collective bargaining agreement that is in effect; (3) part-time workers (those “who worked, on average, fewer than 25 hours a week during the immediately preceding calendar year”); and (4) seasonal workers (those employed for “25 weeks or fewer in a calendar year for a job scheduled for 25 weeks or fewer”).
Q: When may an eligible employee start to accrue paid medical leave under the act?
A: “Paid medical leave . . . shall begin to accrue on the effective date of the act, or upon commencement of the employee’s employment, whichever is later.”
Q: When may an eligible employee start to use paid medical leave under the act?
A: “An employee may use accrued paid medical leave as it is accrued, except that an employer may require an employee to wait until the ninetieth calendar day after commencing employment before using accrued paid medical leave.”
Q: How does paid medical leave accrue?
A: Employees will accrue paid medical leave at a rate of one hour for every 35 hours actually worked. However, employees cannot accrue more than one hour in a calendar week or more than 40 hours per benefit year. The act defines a benefit year as any 12–month period used by an employer to calculate an eligible employee’s benefits. Hours worked does not include hours taken off work by an eligible employee for paid leave, including paid vacation days, paid personal days, and paid time off, unless the employer voluntarily chooses to include nonworking time in the accrual.
Q: Can employees carry over unused paid sick days?
A: Employees can carry over up to 40 hours of unused accrued paid medical leave from one benefit year to another benefit year, but employees may not use more than 40 hours in a single benefit year.
Q: Can employers provide the total amount of paid sick days all at once?
A: Yes. An employer may provide at least 40 hours of paid medical leave at the beginning of the benefit year or on the date the individual becomes eligible during the benefit year on a prorated basis. If an employer adopts this approach, it does not have to permit employees to carry over unused leave to the next benefit year.
Q: How much are employees paid for their accrued paid medical leave?
A: Accrued leave is paid at the employee’s normal hourly rate of pay or base wage. Calculation of the normal hourly rate of pay does not include overtime pay, holiday pay, bonuses, commissions, supplemental pay, piece-rate pay, or gratuities.
Q: Must an employer provide additional paid medical leave if it already provides paid leave to employees?
A: There is a rebuttable presumption that an employer is in compliance with the Paid Medical Leave Act if the employer provides at least 40 hours of paid leave to an eligible employee each benefit year, including paid vacation days, paid personal days, and other paid time off. What type of information would rebut this presumption is yet to be determined.
Q: For what purposes may an employee use paid medical leave?
A: Employees may take paid medical leave for the physical or mental illness, injury, or health condition of the employee or his or her family member; medical diagnosis, care, or treatment of the employee or employee’s family member; or preventative care of the employee or his or her family member. Employees may also take paid leave if the employee or his or her family member is the victim of domestic violence or sexual assault; for the closure of the employee’s place of business by order of a public official; to care for a child whose school or place of care has been closed by order of a public official; or because of the employee or his or her family member’s exposure to a communicable disease that would jeopardize the health of others.
Q: Under what circumstances may an employee take paid leave in connection with domestic violence or sexual assault?
A: An employee can take leave for medical care or psychological or other counseling, to receive services from a victim services organization, to relocate, to obtain legal services, or to participate in any civil or criminal proceedings related to or resulting from the domestic violence or sexual assault.
Q: Who is part of the employee’s “family”?
A: “Family member,” as defined under the act, includes “a biological, adopted or foster child, stepchild or legal ward, or a child to whom the employee stands in loco parentis”; a biological parent, foster parent, stepparent, adoptive parent, or legal guardian of an employee; a spouse; or a person who stood in loco parentis when the employee was a minor child. Family members also include grandparents; grandchildren; biological, foster, and adopted siblings; and any person to whom the employee is legally married under the laws of any state.
Q: Do employees have a right to be paid out for unused, accrued paid medical leave upon their termination, resignation, retirement, or other separation of employment?
A: No. Employees need not be paid out at separation.
Q: What is the smallest increment of time in which an employee must use accrued paid medical leave?
A: Paid medical leave must be used in one-hour increments, unless the employer has a different increment policy and the policy is in writing in an employee handbook or other employee benefit document. For example, if an employer allows employees to take leave in 10-minute increments under its existing written policy, then paid leave under the act can also be taken in 10-minute increments.
Q: What notice must an employee provide when requesting use of paid medical leave?
A: Employees must follow the employer’s usual and customary notice, procedural, and documentation requirements for requesting leave, but the employee must be afforded at least three days to provide documentation.
Q: What recourse do employers have if an employee does not provide sufficient notice?
A: Employees may be denied leave and may be subject to discipline and discharge for failing to follow notice, procedural, and documentation requirements. However, employees may have protections under other laws like the Americans with Disabilities Act and the Family and Medical Leave Act that employers cannot ignore.
Q: Who may sign medical documentation on behalf of an employee or an employee’s family member?
A: “[A] doctor of medicine or osteopathy who is authorized to practice medicine or surgery (as appropriate) . . . or any other person determined by the Secretary [of Labor] to be capable of providing healthcare services” (as defined under the FMLA), including podiatrists, dentists, clinical psychologists, optometrists, chiropractors, nurse practitioners, nurse midwives, clinical social workers, and physicians assistants—may provide medical documentation.
Q: What forms of documentation may an employee provide where paid medical leave is taken because of domestic violence or sexual assault?
A: A police report, a signed statement from a victim or witness advocate, or court documentation indicating involvement in domestic violence or sexual assault is satisfactory documentation.
Q: Are there any limits on the type of information an employer may require from the employee?
A: Employers may not require the documentation to disclose the details of the medical condition, domestic violence, or sexual assault as a condition of providing paid medical leave.
Q: Do employers have any duty to maintain the confidentiality of the information provided by the employee?
A: Yes. Employers must keep health information, as well as information about domestic violence and sexual assault (about an employee or his or her family member), confidential and cannot disclose the information to others without the employee’s permission.
Q: What, if any, recordkeeping obligations do employers have under the act?
A: Employers shall retain, for not less than one year, records documenting the hours worked and paid medical leave taken by employees.
Q: What, if any, posting obligations do employers have under the act?
A: Employers must display conspicuously at their places of business a poster that contains the amount of paid medical leave required to be provided, the terms under which paid medical leave may be used, the employees’ right to file a complaint with the Michigan Department of Licensing and Regulatory Affairs (LARA) for any violation of the act.
Q: What recourse does an employee have if his or her employer violates the act?
A: Employees may file a claim with LARA within six months of the alleged violation.
Q: What can LARA do if it discovers violations of the act?
A: LARA may recover payment of the improperly withheld paid medical leave and may impose civil fines of not more than $1,000. LARA may also impose civil fines of not more than $100 for each willful violation of an employer’s posting obligations.
Q: Is there any possibility that the obligations under the Paid Medical Leave Act may change in the future?
A: Outside interest groups are likely to continue to support future ballot initiatives related to paid medical leave, perhaps in 2020. Also, the Michigan legislature could seek to amend the act in the future. There could even be a constitutional challenge in court.
Q: What should employers be doing now to prepare for compliance with the Paid Medical Leave Act?
A: Once employers have determined that they are a covered employer and that they do or will employ individuals eligible for paid sick leave, they will want to adopt or revise their existing paid time off policies. Employers that operate in other states and municipalities with paid leave laws or ordinances may have a number of different obligations.
For an in-depth look at Michigan’s Paid Medical Leave Act, join us for our upcoming webinar, “Update for Michigan Employers: The State’s New Paid Medical Leave Act,” featuring Daniel G. Cohen (shareholder, Detroit (Metro)) on January 8, 2019, at 2:00 p.m. to 3:00 p.m. Eastern. To register for this timely program, click here.