The New Michigan Paid Medical Leave Act

Michigan’s new Paid Medical Leave Act will go into effect on March 29, 2019.  The existing Family Medical Leave Act (“FMLA”) only provides for unpaid leave. What does the new Michigan Act mean for employers?

1. Applies to all employers with 50 or more employees.
2. Requires that eligible employees be provided with up to 40 hours of paid leave in a calendar year.

Who is an eligible employee?

1. Averages 25 hours or more per week; and
2. Has been employed for at least 90 days.

However, the following employees are not eligible for paid leave under the Act, even if they meet the criteria above:

1. Employees who are exempt from overtime under the “white collar” exemptions of the Fair Labor Standards Act;
2. Private sector unionized employees;
3. Employees of the federal government or other state governments;
4. Seasonal workers; and
5. Minors

What can paid medical leave be used for?

1. Employee’s own physical or mental illness;
2. Employee’s family member’s physical or mental illness;
   1. Family member is defined as the employee’s legal spouse, children, parents, parents-in-law, grandparents, grandchildren, and sibilings.
3. Medical care, counseling, relocation, or court appearances related to domestic violence or sexual assault;
4. The closing of the employee’s place of work or their child’s school due to a public health emergency; or
5. Employee’s exposure to a communicable disease.

Leave can be accrued or front-loaded, at Employer’s choice:

1. Accrual: eligible employees accrue leave at the rate of at least 1 hour per 35 hours worked (but employer doesn’t have to provide more than 1 hour per calendar week)
   1. Up to 40 hours of unused, accrued time can be carried over from one year to the next (even though employer can limit employee’s use to 40 hours in any year)
   2. New employees accrue leave from first day, but may be required to wait 90 days to take leave
2. Front Loading: employer can provide 40+ hours at the beginning of a benefit year
   1. Carry-over isn’t required
   2. Leave can be pro-rated for new hires

How to take leave:

1. Employer can require documentation and notice, but must give employees at least 3 days to provide documentation.
2. For a domestic violence or sexual assault-related leave, employer can require a police report, court document, or signed victim advocate statement, BUT
   1. Employer must keep this information confidential, and
   2. Employer can’t require that the documentation contain details.

How is it paid?

1. Paid at employee’s normal rate (salary or hourly);
2. Paid in 1 hour increments, unless employer has a different written policy in the employee handbook or other benefits documents; and
3. Employer isn’t required to pay for accrued or unused leave at year end or at end of employment.

Enforcement of the Act:

1. Employer is required to “conspicuously display” posts regarding the employees’ rights under the Act.
2. Employer must retain records of hours worked and leave taken for at least a year.
3. Employees can file claim with LARA regarding alleged violation of the Act.
4. LARA may impose civil fines against the employer for violations of the Act.

Other notes:

1. Employers may implement leave donation policies, allowing employees to donate their leave to co-workers.
2. Employer has a “rebuttable presumption” of compliance if employer provides at least 40 hours of paid leave in a year, through vacation days, personal days, and PTO.

Keep in mind that while this Act is scheduled to go into effect on March 29, it is likely to be challenged in court. Stay tuned for updates.

Please contact us if you have questions, or if you need to amend your employee handbook or other policies.

This blog post was drafted by Melissa Demorest LeDuc, Esq.