May 8, 2013, Introduced by Reps. Hobbs, Tlaib, Ananich and Roberts and referred to the Committee on Commerce.
A bill to require employers to provide paid sick leave to
certain employees; to specify the conditions for accruing and using
paid sick leave; to prohibit retaliation against an employee for
requesting, exercising, or enforcing rights granted in this act; to
prescribe powers and duties of certain state departments, agencies,
and officers; to provide for promulgation of rules; and to provide
remedies and sanctions.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
Sec. 1. This act shall be known and may be cited as the "paid
sick leave act".
Sec. 2. As used in this act:
(a) "Department" means the department of licensing and
regulatory affairs.
(b) "Director" means the director of the department of
licensing and regulatory affairs or his or her designee.
(c) "Domestic violence" has the same meaning as provided in
section 1 of 1978 PA 389, MCL 400.1501.
(d) "Employee" means an individual engaged in service to an
employer in the business of the employer.
(e) "Employer" means any person, firm, business, educational
institution, nonprofit agency, corporation, limited liability
company, or other entity that employs 1 or more individuals.
(f) "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
employee stands in loco parentis.
(ii) A biological parent, foster parent, stepparent, or
adoptive parent or a legal guardian of an employee or an employee's
spouse or domestic partner or a person who stood in loco parentis
when the employee was a minor child.
(iii) A person to whom the employee is legally married under the
laws of this state.
(iv) A grandparent or spouse or domestic partner of a
grandparent.
(v) A grandchild.
(vi) A biological, foster, or adopted sibling or spouse or
domestic partner of 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.
(g) "Retaliatory personnel action" means any of the following:
(i) Denial of any right guaranteed under this act.
(ii) A threat, discharge, suspension, demotion, or other
adverse action against an 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 employee's
participation in any manner in an investigation, proceeding, or
hearing under this act.
(h) "Sexual assault" means any act that constitutes a
violation of 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.
(i) "Small business" means a private employer that is an
individual, firm, partnership, institution, corporation, or
association 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 employer shall provide paid sick leave
annually to each of the employer's employees in this state. Paid
sick leave shall accrue beginning January 1, 2014, at a rate of 1
hour of paid sick leave for each 30 hours worked. Paid sick leave
shall accrue in 1-hour increments up to a minimum of 40 hours per
calendar year for employees of a small business and 72 hours for
all other employees. However, a small business is not required to
permit an employee to use more than 40 hours, and other employers
are not required to permit an employee to use more than 72 hours,
of accrued paid sick leave in a single year.
(2) An employee may use accrued paid sick leave as accrued,
except that an employer may require an employee hired after January
1, 2014 to complete 90 days of service before using accrued paid
sick leave.
(3) For purposes of paid sick leave 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 paid sick
leave accrues based upon that normal workweek.
(4) An employer is in compliance with this section if the
employer provides any paid leave, or combination of paid leave,
that may be used for the same purposes and under the same
conditions provided in sections 4 and 5 and that is accrued in
total at a rate equal to or greater than the rate described in
subsection (1). For the purposes of this subsection, "paid leave"
includes, but is not limited to, paid vacation, personal days, and
paid time off.
(5) An employer shall pay each employee using paid sick leave
at a pay rate equal to the greater of either the normal hourly wage
for that employee or the minimum wage established under the minimum
wage law of 1964, 1964 PA 154, MCL 408.381 to 408.398, but not less
than the minimum wage rate established in section 4 of the minimum
wage law of 1964, 1964 PA 154, MCL 408.384. 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 sick leave.
(6) An employer shall not require an employee to search for or
secure a replacement worker as a condition for using paid sick
leave.
Sec. 4. (1) An employer shall permit an employee to use the
paid sick leave accrued under section 3 for any of the following:
(a) The employee's mental or physical illness, injury, or
health condition; medical diagnosis, care, or treatment of the
employee's mental or physical illness, injury, or health condition;
or preventative medical care for the employee.
(b) For the employee's family member's mental or physical
illness, injury, or health condition; medical diagnosis, care, or
treatment of the employee's family member's mental or physical
illness, injury, or health condition; or preventative medical care
for a family member of the employee.
(c) If the employee or the employee's family member is a
victim of domestic violence or sexual assault, for 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; or to participate in any civil or criminal proceedings
related to or resulting from the domestic violence or sexual
assault.
(2) If the employee's need to use paid sick leave is
foreseeable, an employer may require advance notice, not to exceed
7 days prior to the date the leave is to begin, of the intention to
use the leave. If the employee's need for the leave is not
foreseeable, an employer may require the employee to give notice of
the intention as soon as practicable.
(3) For paid sick leave of more than 3 consecutive days, an
employer may require reasonable documentation that the sick leave
has been used for a purpose described in subsection (1).
Documentation signed by a health care professional indicating that
sick leave is necessary shall be considered reasonable
documentation. A police report indicating that the employee or the
employee's family member was a victim of domestic violence or
sexual assault or a signed statement from a victim and witness
advocate or a court order affirming that the employee is involved
in legal action related to domestic violence or sexual assault
shall be considered reasonable documentation. 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 sick leave, the employer is responsible for
paying all out-of-pocket expenses the employee incurs in obtaining
the documentation.
(4) An employer shall not require disclosure of details
relating to domestic violence or sexual assault or the details of
an employee's or an employee's family member's medical condition as
a condition of providing paid sick leave under this act. If an
employer possesses health information or information pertaining to
domestic violence or sexual assault about an employee or employee's
family member, that information shall be treated as confidential
and shall not be disclosed except to the affected employee or with
the permission of the affected employee.
(5) This act does not require an employer to provide paid sick
leave for any purposes other than as described in this section.
Sec. 5. (1) If an employee is transferred to a separate
division, entity, or location, but remains employed by the same
employer, the employee shall retain all paid sick leave that was
accrued at the prior division, entity, or location and may use all
accrued paid sick leave as provided in section 4. If an employee
separates from employment and is rehired by the same employer
within 6 months of the separation, the employer shall reinstate
previously accrued, unused paid sick leave and shall permit the
reinstated employee to use that sick leave and accrue additional
paid sick leave upon reinstatement.
(2) This act does not require an employer to provide financial
or other reimbursement to an employee for accrued paid sick leave
that was not used upon the employee's termination, resignation,
retirement, or other separation from employment.
Sec. 6. (1) An employer or any other person shall not
interfere with, restrain, or deny the exercise of, or the attempt
to exercise, any right protected under this act.
(2) An employer shall not take retaliatory personnel action or
discriminate against an employee because the employee has exercised
a right protected under this act. Rights protected by this act
include, but are not limited to, the right to use paid sick leave
pursuant to this act, the right to file a complaint or inform any
person about any employer's alleged violation of this act, the
right to cooperate with the department in its investigations of
alleged violations of this act, and the right to inform any person
of his or her rights under this act.
(3) An employer's absence control policy shall not treat paid
sick leave taken under this act as an absence that may lead to or
result in discipline, discharge, demotion, suspension, or any other
adverse action.
(4) The protections in this section apply to any person who
mistakenly but in good faith alleges a violation of this section.
(5) There is a rebuttable presumption of a violation of this
section if an employer takes adverse personnel action against a
person within 90 days after that person does any of the following:
(a) Files a complaint with the department or a court alleging
a violation of this act.
(b) Informs any person about an employer's alleged violation
of this act.
(c) Cooperates with the department or another person in the
investigation or prosecution of any alleged violation of this act.
(d) Opposes any policy, practice, or act that is prohibited
under this act.
(e) Informs any person of his or her rights under this act.
Sec. 7. (1) If an employer violates this act, the employee
affected by the violation, at any time within 3 years after the
violation, may do any of the following:
(a) Bring a civil action for appropriate relief, including
payment for used sick leave; 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 a claim with the department, which shall investigate
the claim.
(2) 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 of 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 leave policy that provides fewer rights or
benefits is not a bar to the action.
(3) In addition to liability for civil remedies described in
this section, an employer who fails to provide paid sick leave in
violation of this act is subject to a civil fine of not more than
$1,000.00.
Sec. 8. (1) An employer subject to the provisions of this act
shall provide notice to each employee at the time of hiring of all
of the following:
(a) The amount of sick leave required to be provided to an
employee under this act.
(b) The terms under which sick leave may be used.
(c) That retaliation by the employer against an employee for
requesting or using sick leave for which the employee is eligible
is prohibited.
(d) The employee's right to file a complaint with the
department for any violation of this act.
(2) 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) in both
English and Spanish.
(3) The department shall create and make available to
employers posters that contain the information required under
subsection (1) for employers' use in complying with this section.
Posters shall be provided in both English and Spanish
Sec. 9. The department shall develop and implement a
multilingual outreach program to inform employees, parents, and
persons who are under the care of a health care provider about the
availability of paid sick leave under this act. This program shall
include distribution of notices and other written materials in
English and in other languages to child care and elder care
providers, domestic violence shelters, schools, hospitals,
community health centers, and other health care providers.
Sec. 10. An employer shall retain for 5 years records
documenting the hours worked and paid sick leave taken by
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 paid sick leave under this act and the employer
does not maintain or retain adequate records documenting the hours
worked and paid sick leave 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 paid sick leave and shall not be construed to preempt, limit, or
otherwise affect the applicability of any other law, regulation,
requirement, policy, or standard 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 paid sick leave
than is required under this act.
(b) Diminish any rights provided to any employee under a
collective bargaining agreement.
(c) Preempt or override the terms of any collective bargaining
agreement in effect prior to January 1, 2014.
(d) Prohibit an employer from establishing a policy that
permits an employee to donate unused accrued paid sick leave to
another employee.
Sec. 12. The director may promulgate rules in accordance with
the administrative procedures act of 1969, 1969 PA 306, MCL 24.201
to 24.328, as necessary to administer this act.
Enacting section 1. This act takes effect January 1, 2014.