Bill Text: MI HB4307 | 2017-2018 | 99th Legislature | Introduced
Bill Title: Labor; fair employment practices; paid sick leave; require certain employers to provide. Creates new act.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Introduced - Dead) 2017-03-07 - Bill Electronically Reproduced 03/02/2017 [HB4307 Detail]
Download: Michigan-2017-HB4307-Introduced.html
HOUSE BILL No. 4307
March 2, 2017, Introduced by Reps. Chang, Geiss, Love, Faris, Hertel, Santana, Yanez, Chirkun, Green, Pagan, Gay-Dagnogo, Byrd, Rabhi, Brinks, Sneller, Wittenberg, Ellison, Sowerby, Moss, Phelps, Sabo, Hammoud, Hoadley, Elder, Dianda, Cochran, Jones, Lasinski, Camilleri, LaGrand, Neeley, Peterson, Durhal, Greig and Zemke and referred to the Committee on Commerce and Trade.
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 must
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, 2018, 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 carries 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, 2018, 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 of 1938, 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 retains 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 must 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 first 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 not a prerequisite
or 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, 2018, 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 does not 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, 2018, 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, 2018.
