SENATE BILL No. 101

 

 

February 11, 2015, Introduced by Senators ANANICH, SMITH, HERTEL, BIEDA, WARREN, JOHNSON, YOUNG and HOPGOOD 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) "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.

 

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

 

regulatory affairs.

 

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

 

licensing and regulatory affairs or his or her designee.

 

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

 

relationship with another adult, including both same-sex and

 

different-sex relationships.

 

     (e) "Domestic violence" has the same meaning as provided in

 

section 1 of 1978 PA 389, MCL 400.1501.

 

     (f) "Employee", subject to section 12, 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.

 

     (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.

 

     (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

 

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 any state or a domestic partner.

 

     (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.

 

     (i) "Health care professional" means any of the following:

 

     (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.

 

     (k) "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.

 

     (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 employer shall provide paid sick leave

 

annually to each of the employer's employees in this state. Paid

 

sick leave accrues beginning January 1, 2016, at a rate of 1 hour

 

of paid sick leave for each 30 hours worked. Paid sick leave

 

accrues in 1-hour increments up to 40 hours per calendar year for

 

employees of a small business and 72 hours for all other employees.

 

Paid sick leave shall carry over from year to year, but 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, 2016, to wait until the ninetieth calendar day after beginning

 

employment 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 this act 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

 

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 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; 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 closure of the employee's place of business by order

 

of a public official due to a public health emergency; for an

 

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 it has been determined by the health

 


authorities having jurisdiction or by a health care provider that

 

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

 

community would jeopardize the health of others because of the

 

employee's or family member's exposure to a communicable disease,

 

whether or not the employee or family member has actually

 

contracted the communicable disease.

 

     (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). 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 paid sick leave on the basis that the employer has

 

not yet received documentation. Documentation signed by a health

 

care professional indicating that sick leave is necessary is

 

reasonable documentation. A police report indicating that the

 

employee or the employee's 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 employee's family

 

member is receiving services from a victim services organization,

 

or a court document indicating that the employee or employee's

 

family member is involved in legal action related to domestic

 


violence or sexual assault is 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, the employer shall treat that information as

 

confidential and shall not disclose that information 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) If a different employer succeeds or takes the place of an

 

existing employer, the successor employer assumes the

 

responsibility for the sick leave rights that employees who remain

 

employed by the successor employer accrued under the original

 

employer. Those employees are entitled to use paid sick leave

 

previously accrued on the terms provided in this act.

 

     (3) 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 retaliatory personnel 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 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 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. Filing a claim with the department is neither a

 

prerequisite nor a bar to bringing a civil action.

 


     (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 than provided by this act is void and unenforceable.

 

     (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.

 

     (4) An employer that willfully violates a notice or posting

 

requirement of section 8 is subject to a civil 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 January

 

1, 2016, whichever is later, 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 retaliatory personnel action 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 bring a civil action or 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.

 

The department shall provide posters 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 must

 

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, 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 paid sick leave

 

than is required under this act.

 

     (b) Diminish any rights provided to any 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 employee to donate unused accrued paid sick leave to

 

another employee.

 

     Sec. 12. If an employer's employees are covered by a

 

collective bargaining agreement in effect on January 1, 2016, this

 

act applies beginning on the date that agreement expires,

 

notwithstanding any statement in the agreement that it continues in

 

force until a future date or event or the execution of a new

 


collective bargaining agreement.

 

     Sec. 13. 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, 2016.