Federal law and guidance on this subject should be reviewed together with this section.
Author: Susan A. P. Woodhouse, Littler
- Michigan does not have a state family and medical leave law applicable to private employers. See Family and Medical Leave.
- A covered employer must provide eligible employees with paid sick and safe leave under the Paid Medical Leave Act. See Paid Sick Leave.
- Other types of leave may be available to Michigan employees - some required by federal, state or local law, and some provided by company policy, as well as several sources of income replacement. See Interaction of Leave Laws.
Family and Medical Leave
Michigan does not have a state family and medical leave law applicable to private employers. However, a Michigan employer with 50 or more employees is likely required to adhere to adhere to the federal Family and Medical Leave Act (FMLA).
Retaliation: Michigan employers should be wary of potential liability for FMLA retaliation under the cat's paw theory, under which an employer can be held liable for employment discrimination based on the discriminatory animus of a lower-level manager or supervisor who influenced, but did not make, the final employment decision. The 6th Circuit Court of Appeals (covering Kentucky, Michigan, Ohio and Tennessee) extended the cat's paw theory to an FMLA retaliation claim in Marshall v. The Rawlings Company LLC, +854 F.3d 368 (2017). The court applied the cat's paw theory where more than one layer of supervision existed between the terminated employee and the ultimate decision-maker. See FMLA: Federal.
The Supreme Court ruled that the 14th Amendment requires a state to do the following:
- License a marriage between two people of the same sex; and
- Recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out of state.
Obergefell v. Hodges +2015 U.S. LEXIS 4250 (U.S. June 26, 2015).
Same-sex marriage is legal nationwide, and couples lawfully married in any state, including Michigan, are entitled to FMLA spousal leave benefits.
An employer should be careful if it seeks to confirm an employee's spousal relationship (for purposes of the FMLA) to ensure it does not discriminate in any way. While the FMLA allows an employer to confirm a family relationship, the employer's practices to confirm such relationships should be the same for employees in same-sex marriages as those in opposite-sex marriages (e.g., if an employer does not ask heterosexual employees for marriage licenses it should be careful about asking homosexual employees for such documentation).
Apart from FMLA considerations, employers with employees residing in Michigan should look at existing policies that provide for leave based on spousal relationships, such as bereavement leave or military leave. Policy language (such as how a spouse is defined) may need to be revised.
Paid Sick Leave
Note: The Michigan Supreme Court scheduled a hearing for July 17, 2019, to determine whether it should issue an advisory opinion on the validity of the state's Paid Medical Leave Act (PMLA). Pending the outcome of that hearing, the PMLA is in effect.
The PMLA requires an employer with 50 or more employees to provide eligible employees with paid sick and safe leave. An employer means any person, firm, business, educational institution, nonprofit agency, corporation, limited liability company, government entity or other entity that employs 50 or more individuals. It does not include the US government, another state or a political subdivision of another state.
An eligible employee may use paid sick and safe leave for reasons such as, the employee's or the employee's family member's mental or physical illness, injury or health condition or the need to seek medical diagnosis, care or treatment for the illness, injury or health condition, and to relocate due to a domestic violence or sexual assault.
An employer will generally be considered to be in compliance with the PMLA if it provides at least 40 hours of paid leave to an eligible employee each benefit year. Paid leave includes, but is not limited to, paid vacation days, paid personal days and paid time off. Leave taken under the PMLA will run concurrently with federal FMLA leave if the absence is covered under both laws.
For more information on the PMLA, including greater details on employer coverage, eligible employees, qualifying reasons for leave and provisions relating to carryover, frontloading, employee notice and documentation requirements, recordkeeping requirements, retaliation and penalties, please see Other Leaves: Michigan.
Interaction of Leave Laws
Other types of leave may be available to Michigan employees - some required by federal, state or local law, and some provided by company policy, as well as several sources of income replacement. See Other Leaves: Michigan. While some of these laws can run at the same time, others cannot.
Remain alert to the various types of leave available and take care to track an employee's leave of absence, including:
- The date the leave begins;
- The type of leave; and
- The expected return date.
There are no developments to report at this time. Continue to check XpertHR regularly for the latest information on this and other topics.