Want to Read More? To continue reading this article, please Log in or Register Now

Employee Handbooks - Work Rules - Employee Conduct: Michigan

Employee Handbooks - Work Rules - Employee Conduct requirements for other states

Federal law and guidance on this subject should be reviewed together with this section.

Author: Rhonda Armstrong, Pilchak & Cohen, P.C.

Summary

  • Michigan is an employment at-will state. See Nature of Employment.
  • Michigan's employment discrimination laws extend protections to the additional categories of height, weight, marital status, and misdemeanor arrest that did not result in conviction. See Discrimination.
  • Michigan's disability discrimination statute provides employers with a defense to state failure to accommodate claims when employees have failed to notify the employer of the need for accommodation so long as the employer has previously notified the employee of the reporting obligation. See Discrimination.
  • Michigan requires employers to follow their written policies or contracts with respect to fringe benefits. Few benefits are required with the exception of jury duty leave, witness duty leave, and military duty leave. See Leave and Fringe Benefit Entitlement.
  • Michigan's eavesdropping statute is more restrictive than federal law, and only permits eavesdropping when a party to the conversation consents to the recording. See Surveillance and Monitoring.
  • Michigan prohibits polygraph tests in employment. See Polygraph Tests.
  • Michigan has few restrictions on substance abuse testing, but to avoid common law claims employers are advised to implement comprehensive written policies, notwithstanding. Employers should reserve the right to discipline employees for detection of metabolites, in addition to actual drugs. See Substance Abuse Testing.
  • To date, notwithstanding Michigan's law permitting persons to carry concealed weapons, employers are free to prohibit possession of weapons on work premises. See Workplace Violence.
  • Michigan law requires employers to implement written policies for employees who have access to social security number information. See Social Security Number Privacy.
  • Michigan law prohibits smoking in most places of employment, and employers are advised to implement written policies regarding same. See Smoking.
  • But for a few limited circumstances, employers desiring to conduct motor vehicle records checks of employees are required to obtain employee's consent. See Motor Vehicle Records Checks.
  • Ann Arbor, Detroit, Grand Rapids and Lansing have requirements pertaining to employee handbooks, work rules and employee conduct. See Local Requirements.

Nature of Employment

In general, Michigan presumes that an employment relationship is at-will. See Lytle v. Malady (On Rehearing), +458 Mich. 153 (1998). However, employers may create a just cause employment relationship through various actions, including:

  • A contractual provision for a definite term of employment or a provision limiting discharge absent just cause;
  • Express agreement, written or oral, regarding job security which is clear and unequivocal; and
  • Employment policies and procedures which instill legitimate expectation of job security in the employee.

Michigan employers are advised to include clear disclaimer language in their job applications, employee handbooks, and other publications to employees and should avoid making any promises (written or oral) that would support an argument that certain steps or actions would occur prior to discharge. For example, promises of progressive discipline, heightened status upon completion of a probationary period, or rights to appeal before discharge are examples of evidence that Michigan courts have relied upon (in whole or in part) to support just cause employment.

See Employment At-Will: Michigan.

Discrimination

Michigan's Elliott-Larsen Civil Rights Act (ELCRA) extends protections to four additional classifications in the employment context: height, weight, marital status, and misdemeanor arrest record that did not result in conviction. +MCLS § 37.2203; +MCLS § 37.2205a. The ELCRA also prohibits employers from treating "an individual affected by pregnancy, childbirth, or a related medical condition differently for any employment-related purpose from another individual who is not so affected but similar in ability or inability to work." +MCLS § 37.2202(1)(d).

Local requirements may also apply. See Local Requirements.

Four notable differences exist between the Michigan and federal discrimination statutes.

  1. Michigan's antidiscrimination laws cover virtually all employers and are not limited to employers with 15 or more employees.
  2. The ELCRA extend protections to persons who are too young, not just persons over 40. See Zanni v. Medaphis Physician Servs Corp, +240 Mich. App. 472 (2000).
  3. The PWDCRA does not require leave as an accommodation. See Hawkins v. Genesys Health Sys., +704 F.Supp.2d 688 (E.D. MI. 2010); Kerns v. Dura Mech Components, Inc, +242 Mich. App. 1 (2000).
  4. Under the PWDCRA, if proper notice is provided to applicants and employees, employers may defend failure to accommodate claims if the employee fails to request such within 182 days of the recognized need. +MCLS § 37.1210 (18); +MCLS § 37.1210 (19). Thus, it is recommended that Michigan employers notify employees of this reporting obligation in employment applications, employee handbooks, and other appropriate publications to employees.

Leave and Fringe Benefit Entitlement

Under Michigan's Payment of Wages and Fringe Benefits Act (PWFBA), employers must provide any leave (or other fringe benefits) in accordance with their written contracts or policies. +MCLS § 408.473. Otherwise, Michigan does not require employers to extend leave or other fringe benefits with the exception of jury duty, witness duty, and military duty leave.

Jury Duty Leave

Michigan requires employers to provide leave for jury duty, and also restricts employers from requiring employees to work during periods of jury duty to the extent that the number of hours of jury service plus work are more than the employee normally and customarily works, or to the extent that the hours extend beyond the "normal and customary quitting time of that person unless voluntarily agreed to by that person, or as provided in a collective bargaining agreement." +MCLS § 600.1348.

Military Duty Leave

Michigan also requires employers to provide leave and not discriminate against members of state or United States uniformed service members. +MCLS § 32.271.

The Michigan legislature has adopted the Paid Medical Leave Act (PMLA), the state's paid sick leave law. The PMLA amends and renames the Earned Sick Time Act (ESTA), which had been adopted in September 2018. See +2017 MI S.B. 1175; Other Leaves: Michigan.

Under the PMLA, an employer with 50 or more employees must provide eligible employees with paid sick leave.

An eligible employee may use paid medical leave for the following reasons:

  • The employee's or a covered family member's mental or physical illness, injury or health condition; need for medical diagnosis, care or treatment; or need for preventative medical care;
  • The employee or a covered family member is a victim of domestic violence or sexual assault, and needs to:
    • Obtain medical care or psychological or other counseling for physical or psychological injury or disability;
    • Obtain services from a victim services organization;
    • Relocate;
    • Obtain legal services; or
    • Participate in any civil or criminal proceedings related to or resulting from the domestic violence or sexual assault;
  • For closure of the employee's primary workplace or a child's school or place of care by order of a public official due to a public health emergency; and
  • When it has been determined by the health authorities having jurisdiction or by a health care provider that the employee's or a family member's presence in the community would jeopardize the health of others because of exposure to a communicable disease, whether or not the employee or family member has actually contracted the communicable disease.

The Act has notice-posting requirements.See Employee Communications: Michigan.

Witness Duty Leave

Leave must also be provided to an employee subpoenaed or requested by a prosecutor to attend court and give testimony. +MCLS § 780.762. With respect to the witness/subpoena duty, a statutory victim's representative enjoys the same job protections, as well. Employers are also prohibited from disciplining or discharging employees for such service.

Surveillance and Monitoring

Michigan's eavesdropping statute is more expansive than federal law in that only a party to a conversation is permitted to record a conversation, and no third-party may do so even if authorized by a participant to the conversation. +MCLS § 750.539c; See Sullivan v. Gray, +117 Mich. App. 476 (1982). Employers may generally use video surveillance, except that such is prohibited in private areas such as bathrooms or locker rooms. +MCLS § 750.539a.

Polygraph Tests

The Polygraph Protection Act covers all Michigan employers, and prohibits an employer from requiring applicants or employees to take a polygraph examination as a condition of employment. +MCLS § 37.201.

Substance Abuse Testing

To date, Michigan does not regulate employers' drug testing procedures, and most litigation has been limited to the public sector and/or privacy-related claims when employers have failed to provide employees with advance notice of their intent to conduct drug or alcohol testing.

Medical Marijuana

Michigan permits medical marijuana use for patients with debilitating medical conditions. Qualifying patients may possess up to two-and-a-half ounces of the drug. Included among the qualifying conditions are:

  • Alzheimer's disease;
  • Cancer;
  • Crohn's disease;
  • Glaucoma;
  • HIV or AIDS;
  • Hepatitis C; and
  • Lou Gehrig's disease (ALS).

However, the Michigan Medical Marijuana Act (MMMA) does not require an employer to accommodate marijuana use in any workplace. +MCLS § 333.26427. In Casias v. Wal-Mart Stores Inc., the federal Sixth Circuit Court of Appeals, interpreting Michigan law, held that the MMMA does not excuse a failed drug test that results from medical marijuana use. +695 F.3d 428.

Additionally, employers should not authorize employees who are under the influence to perform duties that may constitute a safety hazard.

Recreational Marijuana

Under the Michigan Regulation and Taxation of Marihuana Act (the Act), it is legal for an adult 21 or over to possess, process, consume, or give to another adult up to 2.5 ounces of marijuana and, in his or her residence, to possess up to 10 ounces and grow and process up to 12 plants.

The Act, however, prohibits a person from consuming marijuana in a public place, except for any areas designated for such consumption that are not accessible to a minor under the age of 21. A person is also prohibited from operating a motor vehicle while consuming or under the influence of marijuana.

The Act also does not:

  • Require an employer to permit or accommodate marijuana use in the workplace or on employer property;
  • Prevent an employer from refusing to hire, firing, disciplining, or otherwise taking an adverse employment action against a person who violated a workplace drug policy or was working while under the influence of marijuana; or
  • Prevent a person who owns, occupies, or manages property from prohibiting or regulating the consumption, cultivation, distribution, processing, sale, or display of marijuana and marijuana accessories on that property.

See Employee Health: Michigan.

Workplace Violence

Michigan is a Shall Issue state, meaning that officials must issue a concealed handgun permit to applicants meeting the state's qualifications.

Michigan honors reciprocity compacts with numerous states, which allows concealed weapons permits or licenses from other states in the compact. Non-residents may carry a concealed weapon if they have a permit/license from another state in the compact when traveling in or visiting Michigan.

An employer may not prohibit an employee with a permit from carrying a concealed firearm in the workplace or parking lot areas. However, an employer may prohibit an employee from carrying a concealed firearm during the course of employment. +MCLS § 28.425n.

Employers should be aware that transporting a handgun in a vehicle in Michigan is subject to numerous restrictions. Any individual carrying a handgun that is stopped by or encounters law enforcement, must immediately inform the officer of the existence of the weapon. The state has specific requirements on methods to transport a weapon, which must be complied with properly.

Additionally, even with a valid permit, carrying concealed weapons in numerous places is subject to various restrictions.

Handguns are prohibited in the following places:

  • Schools, day cares or other child care facilities;
  • Sports arena or stadium;
  • Taverns where the primary source of income is alcohol sales;
  • Places of worship, including churches, synagogues, temples and mosques;
  • Entertainment facilities that seat 2,500 individuals or more;
  • Hospitals;
  • Classrooms and dorms of colleges, colleges or universities;
  • Casinos; and
  • Courtrooms or other facilities that are used by judicial employees.

Additionally, certain colleges or universities throughout the state may ban weapons from the entire campus, as well as collegiate activities.

Employers should review gun control laws prior to creating workplace programs and train workers on the appropriate provisions.

SeeWorkplace Security: Michigan.

Social Security Number Privacy

Michigan's Social Security Number Privacy Act extends protections to employees with regard to the use or display of Social Security Numbers and prohibits the use of all or more than four sequential digits in several contexts. Moreover, employers are required to implement written policies for employees who have access to social security numbers, and such policies must ensure, to the extent practicable, the confidentiality of social security numbers, prohibit unlawful disclosures, limit access to social security numbers, describe how to properly dispose of documents containing social security numbers, and establish penalties for violations of the policy. +MCLS § 445.83; +MCLS § 445.84.

Smoking

Effective May 1, 2010, Michigan's Ron Davis Law, commonly referred to as the Smoke Free Law, was passed that prohibits smoking in most places of employment, with a few exceptions. The law requires employers to make "a reasonable effort to prohibit individuals from smoking in a public place." +MCLS § 333.12603 (2). If challenged, employers have the opportunity to submit an affidavit demonstrating their good faith efforts for compliance. +MCLS § 333.12611. So, while not required, it is recommended that employers implement written policies which can be relied upon to show good faith, if their efforts are scrutinized.

Meal and Other Work Breaks

Michigan currently does not require that any lunch or break periods be provided to employees, to the extent employees are 18 years old or older. However, any minor employed must be provided with a meal or rest period of at least 30 minutes if continuously employed for more than five hours. +MCLS § 409.112.

Off-Duty Conduct

Michigan's Bullard-Plawecki Right to Know Act prohibits an employer from gathering or maintaining records regarding "an employee's associations, political activities, publications, or communications of nonemployment activities," unless the employer has received such information from the employee and/or the employee has provided written authorization to the employer to gather or maintain such information. +MCLS § 423.508.

Nepotism

Even though the ELCRA prohibits discrimination on the basis of marital status, Michigan courts have interpreted the statute to permit anti-nepotism policies, finding that the ELCRA only prohibits discrimination based upon whether the individual is married or not and does not extend to employment decisions based upon the identity, occupation, and place of employment of one's spouse. Miller v. C. A. Muer Corp, +420 Mich. 355, 363; +362 N.W.2d 650 (1984).

Other Considerations

The PWFBA generally prohibits deductions from employees pay unless they are authorized by the employee in writing. +MCLS § 408.477 (1). Further, the PWFBA prohibits employers from requiring employees to pay a fee as a condition of employment. +MCLS § 408.478 (1). This provision has been interpreted to prohibit any agreement requiring employees to pay for mandatory, work-related training. See Sands Appliance Srv. v. Wilson, +463 Mich. 31; +619 N.W.2d 241 (2000). Any work rule or agreement requiring employee payment should be closely scrutinized to ensure it does not violate these provisions.

The PWFBA requires that all employers follow their written policies with respect to fringe benefits. As such, employers should ensure that their written policies accurately reflect their actual practices to minimize claims for unpaid benefits.

Local Requirements

Ann Arbor Human Rights Ordinance

Ann Arbor's Human Rights Ordinance prohibits employment discrimination based on actual or perceived age, arrest record, color, disability, educational association, familial status, family responsibilities, gender expression, gender identity, genetic information, height, HIV status, marital status, national origin, political beliefs, race, religion, sex, sexual orientation, source of income, veteran status, victim of domestic violence or stalking, or weight.

City of Ann Arbor, Michigan, Code of Ordinances, Chapter 112, Section 9:150.

Detroit Human Rights Ordinance

Detroit's Human Rights Ordinance prohibits employment discrimination based on race, color, religious beliefs, national origin, age, marital status, disability, public benefit status, sex, sexual orientation, or gender identity or expression.

Detroit, Michigan Code of Ordinances Sec. 27-3-1.

Grand Rapids Human Rights Ordinance

Grand Rapids's Human Rights Ordinance prohibits employment discrimination based on actual or perceived color, race, religion or creed, sex, gender identity or expression, sexual orientation, national origin, genotype, age, marital status, medical condition, disability, height, weight, or source of lawful income.

Grand Rapids, Michigan, Code of Ordinances Chapter 175; Sec. 9.935.

Lansing Human Rights Ordinance

Lansing's Human Rights Ordinance prohibits employment discrimination based on race, religion, sex, age, national origin, marital status, familial status, mental or physical limitation, political affiliation, source of income, and sexual orientation and gender identity in employment, housing and public accommodations.

Lansing, Michigan, Ordinance # O1120.

Future Developments

There are no developments at this time. Continue to check XpertHR regularly for the latest information on this and other topics.

Additional Resources

Employee Handbooks - Work Rules - Employee Conduct: Federal