Other Leaves: Michigan
Federal law and guidance on this subject should be reviewed together with this section.
Author: Daniel Cohen, Pilchak & Cohen, PC
- There are various types of leave that may be available to an employee in Michigan. See Leaves of Absence.
- Michigan does not have a state family and medical leave law applicable to private employers.See Family and Medical Leave.
- An employer with 50 or more employees must provide eligible employees with paid sick and safe leave under the Paid Medical Leave Act. See Paid Sick Leave.
- An employer may not terminate an employee for serving as a juror. See Jury Duty Leave.
- An employer may not terminate an employee who must attend court as a victim of a crime or victim representative. See Crime Victim Leave.
- Michigan law does not require that a private employer provide an employee with a leave of absence to vote. See Voting Leave.
- Michigan law provides leave and reemployment rights, which extend coverage beyond the federal Uniformed Services Employment and Reemployment Act to state National Guard and state militia members See Military Leave.
Leaves of Absence
There are various types of leave that may be available to an employee in Michigan. To the extent that applicable federal, state or local laws conflict, an employer should apply the provisions that provide the greatest benefits and protections to the employee.
An employer should remain alert to the various types of leave available and take care to track employees' leaves of absence, including:
- The date the leave begins;
- The type of leave; and
- The expected return date.
An employee who exercises leave rights is not protected from discipline for legitimate reasons that are unrelated to the leave and that are not otherwise prohibited by law.
If an employer must discipline an employee who has exercised his or her leave rights, it should carefully document the reasons for the discipline, review past application of the rule (to ensure the policy is being enforced evenhandedly), and consider whether to seek the advice of counsel before imposing the discipline.
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 the federal Family and Medical Leave Act (FMLA).
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. The PMLA amends and renames the Earned Sick Time Act.
The state has published FAQs regarding the PMLA.
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. +MCLS § 408.962(f).
A covered employer should consider including a paid sick and safe leave policy in its handbook to educate employees, including supervisors, about the availability of paid sick and safe leave and to show its compliance with Michigan law.
An eligible employee means an individual engaged in service to an employer in the business of the employer and from whom the employer is required to withhold for federal income tax purposes.
An eligible employee does not include:
- Individuals whose primary work location is not in Michigan;
- Individuals who worked, on average, fewer than 25 hours per week during the immediately preceding calendar year;
- Individuals employed by an employer for 25 weeks or fewer in a calendar year for a job scheduled for 25 weeks or fewer;
- Individuals who are exempt from federal overtime requirements;
- Variable-hour employees, as defined in +26 CFR 54.4980H-1;
- Individuals who are paid subminimum wages;
- Individuals in the private sector who are covered by a collective bargaining agreement (CBA);
- Individuals employed by a temporary help firm, as described in +MCLS § 421.29(1)(l);
- Individuals employed by the US government, another state or a political subdivision of another state; and
- Certain individuals covered by the Railway Labor Act or Railroad Unemployment Insurance Act.
+MCLS § 408.962(e).
If an employer's employees are covered by a CBA in effect on March 29, 2019 (effective date of the PMLA), then then PMLA applies on the stated expiration date in the CBA, notwithstanding any statement in the agreement that it continues in force until a future date or event or the execution of a new CBA. +MCLS § 408.972.
Qualifying Reasons for 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;
- 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.
A covered family member includes:
- A child (including a biological, adopted, foster or stepchild; a legal ward; and a child to whom the employee stands in loco parentis);
- A parent (including a biological, adoptive, foster or stepparent or a legal guardian of the employee or the employee's spouse; and a person who stood in loco parentis when the employee was a minor child);
- A spouse (i.e., an individual to whom the employee is legally married);
- A grandparent;
- A grandchild; and
- A sibling (including a biological, adopted or foster sibling).
+MCLS § 408.962(g).
Accrual and Use of Leave
Accrual. Accrual begins when the law takes effect or when employment begins, whichever is later.
Employees accrue one hour of paid medical leave for every 35 hours worked (including overtime), up to 40 hours in a benefit year. An employer is not required to allow an employee to accrue more than one hour of paid medical leave in a calendar week.
Hours worked excludes hours taken off from work for paid leave, e.g., paid vacation days, paid personal days and paid time off (unless otherwise included by an employer). +MCLS § 408.963(7).
A benefit year means any consecutive 12-month period used by an employer to calculate an eligible employee's benefits. +MCLS § 408.962(a).
There is rebuttable presumption that an employer is in compliance with PMLA if the employer provides at least 40 hours of paid leave to an eligible employee each benefit year. [LexisNexis: "MCLS § 408.963](5).
Use. An employee may use paid medical leave as it is accrued, except that an employer may require an employee to wait until the 90th calendar day after employment begins before using accrued paid sick leave.
An employee may use up to 40 hours of paid medical leave in a single benefit year (unless the employer selects a higher limit).
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 benefits document.
Carryover. An employee may carry over up to 40 hours of unused accrued paid medical leave from one benefit year to another benefit year.
Donation. An employer may establish a policy that permits an eligible employee to donate unused accrued paid medical leave to another eligible employee.
Rather than require employees to accrue paid medical leave based on hours worked, an employer may choose to frontload at least 40 hours of paid medical leave to an eligible employee at the beginning of a benefit year. If an employer chooses to frontload paid medical leave, then it need not allow employees to carry over unused paid medical leave to another benefit year.
For eligible employees hired during a benefit year, an employer may prorate the amount of paid medical leave that is frontloaded.
+MCLS § 408.963(3).
Paid medical leave must be paid at a rate equal to the greater of the employee's normal hourly wage or base wage or the state minimum wage.
When calculating an employee's normal hourly wage or base wage, an employer is not required to include the following:
- Overtime pay;
- Holiday pay;
- Supplemental pay;
- Piece-rate pay; or
+MCLS § 408.963(6).
Changes in Employment
An employer is not required to provide financial or other reimbursement to an employee for accrued paid medical leave that was not used before the end of a benefit year or before the employee's termination, resignation, retirement or other separation from employment.
If an employee is rehired by the same employer, the employer is not required to allow the employee to retain any previously accrued, unused paid medical leave.
An employee who is transferred to a separate division, entity or location, but remains employed by the same employer, retains all paid medical leave that was accrued at the prior division, entity or location. The employee may use all accrued paid medical leave as provided by the law.
Employee Notice Requirements
When requesting paid sick or safe leave under the PMLA, an employee must comply with the employer's usual and customary notice, procedural and documentation requirements for requesting leave. An employer must give an employee at least three days to provide the employer with documentation.
The PMLA does not prohibit an employer from disciplining or terminating an employee for failing to comply with its usual and customary notice, procedural and documentation requirements for requesting leave.
Employee Documentation Requirements
An employer may require an employee who is using safe leave because of domestic violence or sexual assault to provide documentation that the leave has been used for that purpose. For domestic violence or sexual assault, an employee may submit:
- A police report indicating that the employee or a family member was a victim of domestic violence or sexual assault;
- A signed statement from a victim and witness advocate affirming that the employee or a family member is receiving services from a victim services organization; or
- A court document indicating that the employee or a family member is involved in legal action related to domestic violence or sexual assault.
An employer may not require that the documentation explain the details of the violence.
An employer also may not require disclosure of details relating to a medical condition or to domestic violence or sexual assault as a condition of providing paid medical leave.
An employer must treat as confidential any health information or information pertaining to domestic violence or sexual assault that it possesses. It may disclose the information only to the affected employee or with the employee's permission.
Employer Notice and Posting Requirements
An employer must display a poster at its place of business, in a conspicuous place that is accessible to employees, that contains the following information:
- The amount of paid medical leave required to be provided to an eligible employee;
- The terms under which paid medical leave may be used; and
- An employee's right to file a complaint with the Department of Licensing and Regulatory Affairs (Department) for any PMLA violation.
An employer must retain records of the hours worked and paid medical leave taken by employees for at least one year. The records must be open to inspection by the Department director at any reasonable time. +MCLS § 408.970.
Interaction With Other Laws and Policies
Other laws. If a federal paid sick leave law is enacted, the PMLA will not apply as of the federal law's effective date. +MCLS § 408.974.
Other policies. 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. However, an employee may provide evidence indicating otherwise. Paid leave includes, but is not limited to, paid vacation days, paid personal days and paid time off. +MCLS § 408.963.
Collective bargaining agreements. The PMLA does not diminish any rights provided to any eligible employee under a collective bargaining agreement (CBA) or preempt or override the terms of any CBA in effect prior to the PMLA's effective date. +MCLS § 408.971.
Enforcement and Penalties
An employee may file a claim with the Department within six months of an alleged PMLA violation. The law does not provide employees with the right to file a lawsuit.
If the employee files a claim with the Department, it will conduct an investigation and attempt to resolve the complaint through mediation or other means.
The Department may impose penalties and grant payment of all paid medical leave improperly withheld.
In addition, an employer may be subject to administrative fines:
- Up to $1,000 for failing to provide paid sick leave in violation of the PMLA; and
- Up to $100 for each separate posting violation, if willful.
Key Action Steps
A covered employer should consider doing the following action steps to ensure compliance with the PMLA:
- Create, review and/or revise, if necessary, paid sick or other leave policies and procedures to ensure they meet the PMLA's requirements (see Paid Sick and Safe Time Handbook Statement [Accrual Method]: Michigan, for example);
- Post the required notice;
- Ensure timekeeping, payroll and benefits systems properly calculate and track accrued and used paid medical leave. If a third-party payroll processor is used, ensure it is aware of and complies with the law's requirements; and
- Train supervisory and managerial employees, as well as HR and payroll personnel, on the law's requirements.
Jury Duty Leave
An employer may not discipline, terminate, threaten or require extra hours of work from any employee who is summoned for or serves on jury duty. For more information on jury duty leave, please see Jury Duty: Michigan.
Crime Victim Leave
An employer (or their agent) may not threaten to discipline or terminate, or discipline or terminate, any employee who is victim and is subpoenaed or requested by the prosecuting attorney to appear in court for the purpose of giving testimony. +MCLS § 780.762(1).
In addition, an employer (or their agent) may not threaten to discipline or terminate, or discipline or terminate, any employee who acts as victim representative and who attends or desires to attend court to be present during the testimony of the victim. +MCLS § 780.762(2).
A victim is defined as an individual who suffers direct or threatened physical, financial, or emotional harm as a result of the commission of a crime. +MCLS § 780.766.
A victim representative is defined as any of the following:
- A guardian or custodian of a child of a deceased victim if the child is less than 18 years of age;
- A parent, guardian or custodian of a victim of assault if the victim is less than 18 years old; or
- A person who has been designated to act in place of a victim of assault while the victim is physically or emotionally disabled.
+MCLS § 780.762(3).
An employee who is a defendant in the criminal proceedings (or related criminal proceedings) or is incarcerated is not eligible for leave. +MCLS § 780.752.
An employer that violates this law commits a misdemeanor punishable by imprisonment for up to 90 days and/or a fine of up to $500 and may be punished for contempt of court. +MCLS § 780.762(1) and (2).
An employer should consider including a crime victim leave policy in its handbook to educate employees, including supervisors, about the availability of crime victim leave and to show its compliance with Michigan law.
Michigan law does not require that a private employer provide an employee with a leave of absence to vote.
An employer cannot, however, terminate or threaten to terminate an employee in an attempt to influence the employee's vote. +MCLS § 168.931.
Under Michigan law, an employer may not deny a leave of absence to an employee who provides advance notice of the need for leave for the following purposes:
- Being inducted into or entering into active service, active state service (including service under the order of the governor of Michigan or any other state) or the service of the US;
- Determining physical fitness to enter state or federal active service; or
- Performing service (e.g., training duty) as an officer or enlisted member of the military or naval forces of Michigan, any other state or the US.
Michigan law leave and reemployment rights extends coverage beyond the federal Uniformed Services Employment and Reemployment Act (USERRA), to state National Guard and state militia members. For more information on military leave, please see USERRA: Michigan.
Civil Air Patrol Leave
Under the Civil Air Patrol Employment Protection Act an employer may not terminate, discipline or discriminate against an employee because the employee is a member of the civil air patrol or is absent from work, so long as several conditions are met.
For more information on civil air patrol, please see USERRA: Michigan.
The Payment of Wages and Fringe Benefits Act requires an employer to pay fringe benefits to or on behalf of employees in accordance with the terms of a written contract or written policy. Fringe benefits include compensation due an employee according to a written contract or written policy for holidays and time off for sickness, injury, personal reasons or vacation. +MCLS § 408.471; +MCLS § 408.473.
So, if the employer is not required by law to provide, does not agree to provide or does not adopt a written policy providing for such time off, then employees will not be entitled to it. Michigan employers generally have wide discretion on how vacation pay will be earned or accrued or whether it will even be earned or accrued, how it will be paid out and the procedures for requesting and awarding vacations.
Employers should be aware that certain leaves are protected by state law and therefore it should train its supervisory employees not to take action against an employee because he or she took leave or indicated that he or she may take the leave in the near future. See Training and Development: Federal.
There are no developments to report at this time. Continue to check XpertHR regularly for the latest information on this and other topics.