SB-1175, As Passed Senate, November 28, 2018

SUBSTITUTE FOR

SENATE BILL NO. 1175

     A bill to amend 2018 PA 338, entitled

"Earned sick time act,"

by amending the title and sections 1, 2, 3, 4, 5, 7, 8, 10, 11, and

14 (MCL 408.961, 408.962, 408.963, 408.964, 408.965, 408.967,

408.968, 408.970, 408.971, and 408.974); and to repeal acts and

parts of acts.

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

TITLE

     An initiation of legislation act to require certain employers

to provide workers certain employees with the right to earn sick

time paid medical leave for personal or family health needs, as

well as purposes related to domestic violence and sexual assault;

and school meetings needed as the result of a child's disability,

health issues or issues due to domestic violence and sexual

assault; to specify the conditions for accruing and using earned

sick time; to prohibit retaliation against an employee for

requesting, exercising, or enforcing rights granted in this act;

paid medical leave; to prescribe powers and duties of certain state

departments, agencies, and officers; to provide for promulgation of

rules; and to provide remedies and sanctions.

Sec. 1. This act shall be known and may be cited as the

"earned sick time act"."paid medical leave act".

     Sec. 2. As used in this act:

     (a) "Benefit year" means any consecutive 12-month period used

by an employer to calculate an eligible employee's benefits.

(b) (a) "Department" means the department of licensing and

regulatory affairs.

(c) (b) "Director" means the director of the department of

licensing and regulatory affairs or his or her the director's

designee.

     (c) "Domestic partner" means an adult in a committed

relationship with another adult, including both same-sex and

different-sex relationships. "Committed relationship" means one in

which the employee and another individual share responsibility for

a significant measure of each other's common welfare, such as any

relationship between individuals of the same or different sex that

is granted legal recognition by a state, political subdivision, or

the District of Columbia as a marriage or analogous relationship,

including, but not limited to, a civil union.

     (d) "Domestic violence" has the same meaning means that term

as provided defined in section 1 of 1978 PA 389, MCL 400.1501.

     (e) "Earned sick time" means time off from work that is

provided by an employer to an employee, whether paid or unpaid,

that can be used for the purposes described in subsection (1) of

section 4 of this act.

(e) (f)"Employee" "Eligible employee" means an individual

engaged in service to an employer in the business of the employer,

except that employee does not include an individual employed by the

United States government.that term as defined in section 101 of the

family and medical leave act, 29 USC 2611, and from whom an

employer is required to withhold for federal income tax purposes.

Eligible employee does not include any of the following:

     (i) An individual who is exempt from overtime requirements

under section 13(a)(1) of the fair labor standards act, 29 USC

213(a)(1).

     (ii) An individual who is not employed by a public agency, as

that term is defined in section 3 of the fair labor standards act,

29 USC 203, and who is covered by a collective bargaining agreement

that is in effect.

     (iii) An individual employed by the United States government,

another state, or a political subdivision of another state.

     (iv) An individual employed by an air carrier as a flight deck

or cabin crew member that is subject to title II of the railway

labor act, 45 USC 151 to 188.

     (v) An employee as described in section 201 of the railway

labor act, 45 USC 181.

     (vi) An employee as defined in section 1 of the railroad

unemployment insurance act, 45 USC 351.

     (vii) An individual whose primary work location is not in this

state.

     (viii) An individual whose minimum hourly wage rate is

determined under section 4b of the improved workforce opportunity

wage act, 2018 PA 337, MCL 408.934b.

     (ix) An individual described in section 29(1)(l) of the

Michigan employment security act, 1936 (Ex Sess) PA 1, MCL 421.29.

(f) (g) "Employer" means any person, firm, business,

educational institution, nonprofit agency, corporation, limited

liability company, government entity, or other entity that employs

1 or more individuals, except that employer does not include the

United States government.that term as defined in section 101 of the

family and medical leave act, 29 USC 2611. Employer does not

include the United States government, another state, or a political

subdivision of another state.

(g) (h) "Family member" includes all of the following:

     (i) A biological, adopted or foster child, stepchild or legal

ward, a child of a domestic partner, or a child to whom the

eligible employee stands in loco parentis.

     (ii) A biological parent, foster parent, stepparent, or

adoptive parent or a legal guardian of an eligible employee or an

eligible employee's spouse or domestic partner or a person an

individual who stood in loco parentis when the eligible employee

was a minor child.

     (iii) A person An individual to whom the eligible employee is

legally married under the laws of any state. or a domestic partner.

     (iv) A grandparent.

     (v) A grandchild.

     (vi) A biological, foster, or adopted sibling.

     (vii) Any other individual related by blood or affinity whose

close association with the employee is the equivalent of a family

relationship.

(h) (i) "Health care professional" provider" means any of the

following:that term as defined in section 101 of the family and

medical leave act, 29 USC 2611.

     (i) Any person licensed under federal law or the law of this

state to provide health care services, including, but not limited

to, nurses, doctors, and emergency room personnel.

     (ii) A certified midwife.

     (j) "Retaliatory personnel action" means any of the following:

     (i) Denial of any right guaranteed under this act.

     (ii) A threat, discharge, suspension, demotion, reduction of

hours, or other adverse action against an employee or former

employee for exercise of a right guaranteed under this act.

     (iii) Sanctions against an employee who is a recipient of

public benefits for exercise of a right guaranteed under this act.

     (iv) Interference with, or punishment for, an individual's

participation in any manner in an investigation, proceeding, or

hearing under this act.

     (i) "Paid medical leave" means time off from work that is

provided by an employer to an eligible employee that can be used

for the purposes described in section 4(1).

(j) (k) "Sexual assault" means any act that constitutes a

violation of violates section 520b, 520c, 520d, 520e, 520f, or 520g

of the Michigan penal code, 1931 PA 328, MCL 750.520b, 750.520c,

750.520d, 750.520e, 750.520f, and 750.520g.

     (l) "Small business" means an employer for which fewer than 10

individuals work for compensation during a given week. In

determining the number of individuals performing work for

compensation during a given week, all individuals performing work

for compensation on a full-time, part-time, or temporary basis

shall be counted, including individuals made available to work

through the services of a temporary services or staffing agency or

similar entity. An employer is not a small business if it

maintained 10 or more employees on its payroll during any 20 or

more calendar workweeks in either the current or the preceding

calendar year.

     Sec. 3. (1) Each An employer shall provide earned sick time

paid medical leave to each of the employer's eligible employees in

this state.

     (a) Employees of a small business shall accrue a minimum of

one hour of earned sick time for every 30 hours worked but shall

not be entitled to use more than 40 hours of paid earned sick time

in a year unless the employer selects a higher limit. If an

employee of a small business accrues more than 40 hours of earned

sick time in a calendar year, the employee shall be entitled to use

an additional 32 hours of unpaid earned sick time in that year,

unless the employer selects a higher limit. Employees of a small

business must be entitled to use paid earned sick time before using

unpaid earned sick time.

(2) (b) All other employees shall Except as otherwise provided

in subsection (3), an eligible employee must accrue a minimum paid

medical leave at a rate of at least one hour of paid earned sick

time medical leave for every 30 40 hours worked. but shall An

employer is not be entitled to use required to allow an eligible

employee to accrue more than 72 1 hour of paid medical leave in a

calendar week. An employer may limit an eligible employee's accrual

of paid medical leave to not less than 36 hours of paid earned sick

time per benefit year. , unless the employer selects a higher

limit.An employer is not required to allow an eligible employee to

carry over more than 36 hours of unused accrued paid medical leave

from one benefit year to another benefit year. An employer is not

required to allow an eligible employee to use more than 36 hours of

paid family medical leave in a single benefit year.

     (3) As an alternative to subsection (2), an employer may

provide at least 36 hours of paid medical leave to an eligible

employee at the beginning of a benefit year or on the date the

individual becomes an eligible employee. If an employer elects to

provide paid medical leave to an eligible employee pursuant to this

subsection, the employer is not required to allow the eligible

employee to carry over any of that paid medical leave to another

benefit year.

     (c) Earned sick time shall carry over from year to year, but a

small business is not required to permit an employee to use more

than 40 hours of paid earned sick time and 32 hours of unpaid

earned sick time in a single year, and other employers are not

required to permit an employee to use more than 72 hours of paid

earned sick time in a single year.

     (2) Earned sick time as provided in this section shall begin

to accrue on the effective date of this law, or upon commencement

of the employee's employment, whichever is later. An employee may

use accrued earned sick time as it is accrued, except that an

employer may require an employee hired after April 1, 2019, to wait

until the ninetieth calendar day after commencing employment before

using accrued earned sick time.

     (3) For purposes of subsection (1), "year" shall mean a

regular and consecutive twelve-month period, as determined by an

employer.

     (4) For purposes of earned sick time accrual under this act,

an employee who is exempt from overtime requirements under section

13(a)(1) of the Fair Labor Standards Act, 29 USC 213(a)(1), is

assumed to work 40 hours in each workweek unless the employee's

normal work week is less than 40 hours, in which case earned sick

time accrues based upon that normal workweek.

(4) (5) An There is a rebuttable presumption that an employer

other than an small business is in compliance with this section act

if the employer provides any paid leave in at least the same

amounts as that provided under this act that may be used for the

same purposes and under the same conditions provided in this act

and that is accrued at a rate equal to or greater than the rate

described in subsections (1) and (2). An employer that is a small

business is in compliance with this section if the employer

provides paid leave in at least the same amounts as that provided

under this act that may be used for the same purposes and under the

same conditions provided in this act and that is accrued at a rate

equal to or greater than the rate described in subsections (1) and

(2) provided further that that employees of the small business are

entitled to use paid earned sick time before using unpaid earned

sick time. For purposes of this subsection, "paid leave" includes

but is not limited to paid vacation days, personal days, and paid

time off.36 hours of paid leave to an eligible employee each

benefit year.

(5) (6) An employer shall pay each eligible employee using

paid earned sick time medical leave at a pay rate equal to the

greater of either the normal hourly wage or base wage for that

eligible employee or the applicable minimum wage rate established

under the improved workforce opportunity wage act, 2014 PA 138, MCL

408.411 to 408.424, but not less than the minimum wage rate

established in section 4 of the workforce opportunity wage act,

2014, PA 138, MCL 408.414. For any employee whose hourly wage

varies depending on the work performed, the "normal hourly wage"

means the average hourly wage of the employee in the pay period

immediately prior to the pay period in which the employee used paid

earned sick time.

     (7) An employer shall not require an employee to search for or

secure a replacement worker as a condition for using earned sick

time.2018 PA 337, MCL 408.931 to 408.945. An employer is not

required to include overtime pay, holiday pay, bonuses,

commissions, supplemental pay, piece-rate pay, or gratuities in the

calculation of an eligible employee's normal hourly wage or base

wage.

     (6) As used in this section:

     (a) "Hours worked" does not include, unless otherwise included

by an employer, hours taken off from work by an eligible employee

for paid leave.

     (b) "Paid leave" includes, but is not limited to, paid

vacation days, paid personal days, and paid time off.

     Sec. 4. (1) An employer shall permit allow an eligible

employee to use the earned sick time paid medical leave accrued

under section 3 for any of the following:

     (a) The eligible employee's mental or physical illness,

injury, or health condition; medical diagnosis, care, or treatment

of the eligible employee's mental or physical illness, injury, or

health condition; or preventative medical care for the eligible

employee.

     (b) For the The eligible employee's family member's mental or

physical illness, injury, or health condition; medical diagnosis,

care, or treatment of the eligible employee's family member's

mental or physical illness, injury, or health condition; or

preventative medical care for a family member of the eligible

employee.

     (c) If the eligible employee of or the eligible employee's

family member is a victim of domestic violence or sexual assault,

for the medical care or psychological or other counseling for

physical or psychological injury or disability; to obtain services

from a victim services organization; to relocate due to domestic

violence or sexual assault; to obtain legal services; or to

participate in any civil or criminal proceedings related to or

resulting from the domestic violence or sexual assault.

     (d) For meetings at a child's school or place of care related

to the child's health or disability, or the effects of domestic

violence or sexual assault on the child; or

(d) (e) For closure of the eligible employee's place of

business primary workplace by order of a public official due to a

public health emergency; for an eligible employee's need to care

for a child whose school or place of care has been closed by order

of a public official due to a public health emergency; or when if

it has been determined by the health authorities having

jurisdiction or by a health care provider that the eligible

employee's or eligible employee's family member's presence in the

community would jeopardize the health of others because of the

eligible employee's or family member's exposure to a communicable

disease, whether or not the eligible employee or family member has

actually contracted the communicable disease.

     (2) If the employee's need to use earned sick time is

foreseeable, an employer may require advance notice, not to exceed

7 days prior to the date the earned sick time is to begin, of the

intention to use the earned sick time. If the employee's need for

the earned sick time is not foreseeable, an employer may require

the employee to give notice of the intention as soon as

practicable.An eligible employee shall, when requesting to use paid

medical leave, comply with his or her employer's usual and

customary notice, procedural, and documentation requirements for

requesting leave. This act does not prohibit an employer from

disciplining or discharging an eligible employee for failing to

comply with the employer's usual and customary notice, procedural,

and documentation requirements for requesting leave.

     (3) Earned sick time may Paid medical leave must be used in

the smaller of hourly 1-hour increments or the smallest increment

that the employer's payroll system uses to account for absences or

use of other time.unless the employer has a different increment

policy and the policy is in writing in an employee handbook or

other employee benefits document.

     (4) For earned sick time of more than 3 consecutive days, an

employer may require reasonable documentation that the earned sick

time has been used for a purpose described in subsection (1). Upon

the employer's request, the employee must provide the documentation

to the employer in a timely manner. The employer shall not delay

the commencement of earned sick time on the basis that the employer

has not yet received documentation. Documentation signed by a

health care professional indicating that earned sick time is

necessary is reasonable documentation for purposes of this

subsection. In cases An employer may require an eligible employee

who is using paid medical leave because of domestic violence or

sexual assault , one of the to provide documentation that the paid

medical leave has been used for that purpose. The following types

of documentation selected by the employee shall be considered

reasonable documentation are satisfactory for purposes of this

subsection:

(a) a A police report indicating that the eligible employee or

the eligible employee's family member was a victim of domestic

violence or sexual assault. ;

(b) a A signed statement from a victim and witness advocate

affirming that the eligible employee or eligible employee's family

member is receiving services from a victim services organization. ;

or

(c) a A court document indicating that the eligible employee

or eligible employee's family member is involved in legal action

related to domestic violence or sexual assault. An employer shall

not require that the documentation explain the nature of the

illness or the details of the violence. If an employer chooses to

require documentation for earned sick time, the employer is

responsible for paying all out-of-pocket expenses the employee

incurs in obtaining the documentation. If the employee does have

health insurance, the employer is responsible for paying any costs

charged to the employee by the health care provider for providing

the specific documentation required by the employer.

     (5) An employer shall not require that the documentation

provided under subsection (4) explain the details of the violence.

An employer shall not require disclosure of details relating to

domestic violence or sexual assault or the details of an eligible

employee's or an eligible employee's family member's medical

condition as a condition of providing earned sick time paid medical

leave under this act. If an employer possesses health information

or information pertaining to domestic violence or sexual assault

about an eligible employee or eligible employee's family member,

the employer shall treat that information as confidential and shall

not disclose that information except to the affected eligible

employee or with the permission of the affected eligible employee.

     (6) This act does not require an employer to provide earned

sick time paid medical leave for any purposes other than as

described in this section.

     Sec. 5. (1) If an eligible employee is transferred to a

separate division, entity, or location, but remains employed by the

same employer, the eligible employee shall retain retains all

earned sick time paid medical leave that was accrued at the prior

division, entity, or location and may use all the accrued earned

sick time as provided in paid medical leave pursuant to section 4.

If an eligible employee separates from employment and is rehired by

the same employer, within 6 months of the separation, the employer

shall reinstate previously accrued, is not required to allow the

eligible employee to retain any unused earned sick time and shall

permit the reinstated employee to use that earned sick time and

accrue additional earned sick time upon reinstatement.paid medical

leave that the eligible employee previously accumulated while

working for the employer.

     (2) If a different employer succeeds or takes the place of an

existing employer, the successor employer assumes the

responsibility for the earned sick time rights that employees who

remain employed by the successor employer accrued under the

original employer. Those employees are entitled to use earned sick

time previously accrued on the terms provided in this act.

(2) (3) This act does not require an employer to provide

financial or other reimbursement to an eligible employee for

accrued earned sick time paid medical leave that was not used upon

before the employee's end of a benefit year or before the eligible

employee's termination, resignation, retirement, or other

separation from employment.

     Sec. 7. (1) If an employer violates this act, the eligible

employee affected by the violation, at any time within 3 years 6

months after the violation or the date when the employee knew of

the violation, whichever is later, may do any of the following:

     (a) Bring a civil action for appropriate relief, including,

but not limited to, payment for used earned sick time; rehiring or

reinstatement to the employee's previous job; payment of back

wages; reestablishment of employee benefits to which the employee

otherwise would have been eligible if the employee had not been

subjected to retaliatory personnel action or discrimination; and an

equal additional amount as liquidated damages together with costs

and reasonable attorney fees as the court allows.

     (b) File may file a claim with the department. , which shall

investigate the claim. Filing a claim with the department is

neither a prerequisite nor a bar to bringing a civil action.

     (2) (a) The director shall enforce the provisions of this act.

In effectuating such enforcement, the The director shall establish

a system utilizing multiple means of communication to receive

complaints regarding non-compliance with this act and investigate

complaints received by the department in a timely manner.

     (b) Any person alleging a violation of this chapter shall have

the right to file a complaint with the department. The department

shall encourage reporting pursuant to this subsection by keeping

confidential, to the maximum extent permitted by applicable laws,

the name and other identifying information of the employee or

person reporting the violation, provided, however, that with the

authorization of such person, the department may disclose his or

her name and identifying information as necessary to enforce this

chapter or for other appropriate purposes.

(3) (c) Upon receiving a complaint alleging a violation of

this chapter, act, the department shall investigate such the

complaint and attempt to resolve it through mediation between the

complainant and the subject of the complaint, or other means. The

department shall keep complainants notified regarding the status of

their complaint and any resultant investigation. If the department

believes determines that a violation has occurred, it shall issue

to the offending person or entity a notice of violation and the

relief required of the offending person. or entity. The department

shall prescribe the form and wording of such notices of violation,

including any which must include the method of appealing the

decision determination of the department.

(4) (d) The department shall have the power to may impose

penalties and to grant an eligible employee or former eligible

employee all appropriate relief including but not limited to

payment of all earned sick time paid medical leave improperly

withheld. , any and all damages incurred by the complainant as the

result of violation of this act, back pay and reinstatement in the

case of job loss.

     (3) If the director determines that there is reasonable cause

to believe that an employer violated this act and the department is

subsequently unable to obtain voluntary compliance by the employer

within a reasonable time, the department shall bring a civil action

as provided in subsection (1)(a) on behalf of the employee. The

department may investigate and file a civil action under subsection

(1)(a) on behalf of all employees that employer who are similarly

situated at the same work site and who have not brought a civil

action under subsection (1)(a). A contract or agreement between the

employer and the employee or any acceptance by the employee of a

paid or unpaid leave policy that provides fewer rights or benefits

than provided by this act is void and unenforceable.

(5) (4) In addition to liability for civil remedies described

in this section, an An employer who that fails to provide earned

sick time paid medical leave in violation of this act or takes

retaliatory personnel action against an employee or former employee

is subject to a civil an administrative fine of not more than

$1,000.00.

(6) (5) An employer that willfully violates a notice or the

posting requirement of section 8 is subject to a civil an

administrative fine of not more than $100.00 for each separate

violation.

     Sec. 8. (1) An employer subject to this act shall provide

written notice to each employee at the time of hiring or by April

1, 2019, whichever is later, including, but not limited to, display

a poster at the employer's place of business, in a conspicuous

place that is accessible to eligible employees, that contains all

of the following information:

     (a) The amount of earned sick time paid medical leave required

to be provided to an eligible employee under this act.

     (b) The employer's choice of how to calculate a "year"

according to subsection 3 of section 3.

(b) (c) The terms under which earned sick time paid medical

leave may be used.

     (d) That retaliatory personnel action by the employer against

an employee for requesting or using earned sick time for which the

employee is eligible is prohibited.

(c) (e) The eligible employee's right to bring a civil action

or file a complaint with the department for any violation of this

act.

     (2) The notice required under subsection (1) shall be in

English, Spanish, and any language that is the first language

spoken by at least 10% of the employer's workforce, as long as the

department has translated the notice into such language.

     (3) An employer shall display a poster at the employer's place

of business, in a conspicuous place that is accessible to

employees, that contains the information in subsection (1). The

poster displayed should be in English, Spanish, and any language

that is the first language spoken by at least 10% of the employer's

workforce, as long as the department has translated the poster into

such language.

(2) (4) The department shall create and make available to

employers, notices and at no cost, posters that contain the

information required under subsection (1) for employers' use in

complying with this section. The department shall provide such

notices and posters in English, Spanish, and any other languages

deemed appropriate by the department.

     Sec. 10. An employer shall retain for not less than 3 years 1

year records documenting the hours worked and earned sick time paid

medical leave taken by eligible employees. To monitor compliance

with the requirements of this act, an employer shall allow the

department access to those records, with appropriate notice and at

a mutually agreeable time. If a question arises as to whether an

employer has violated an employee's right to earned sick time under

this act and the employer does not maintain or retain adequate

records documenting the hours worked and earned sick time taken by

the employee or does not allow the department reasonable access to

those records, there is a presumption that the employer has

violated the act, which can be rebutted only by clear and

convincing evidence.

     Sec. 11. (1) This act provides minimum requirements pertaining

to earned sick time and shall not be construed to preempt, limit,

or otherwise affect the applicability of any other law, regulation,

requirement, policy, or standard, including a collective bargaining

agreement, that provides for greater accrual or use of time off,

whether paid or unpaid, or that extends other protections to

employees.

     (2) This act does not do any of the following:

     (a) Prohibit an employer from providing more earned sick time

paid medical leave than is required under this act.

     (b) Diminish any other rights provided to any eligible

employee under a collective bargaining agreement.

     (c) Subject to section 12, preempt or override the terms of

any collective bargaining agreement in effect prior to the

effective date of this act.

     (d) Prohibit an employer from establishing a policy that

permits an eligible employee to donate unused accrued earned sick

time paid medical leave to another eligible employee.

     Sec. 14. If any portion of this act or the application thereof

to any person or circumstances shall be found to be invalid by a

court, such invalidity shall not affect, impair, or invalidate the

other portions or applications of the act that can be given effect

without the invalid portion or application, and to this end the

provisions of this act are declared to be severable. If a federal

paid medical leave mandate is enacted, this act does not apply as

of the effective date of the mandate.

     Enacting section 1. Sections 6, 9, and 13 of 2018 PA 338, MCL

408.966, 408.969, and 408.973, are repealed.