Bill Text: MI HB5625 | 2011-2012 | 96th Legislature | Introduced

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Bill Title: Labor; fair employment practices; paid sick leave; require certain employers to provide. Creates new act.

Spectrum: Partisan Bill (Democrat 8-0)

Status: (Introduced - Dead) 2012-05-16 - Printed Bill Filed 05/16/2012 [HB5625 Detail]

Download: Michigan-2011-HB5625-Introduced.html

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HOUSE BILL No. 5625

 

May 15, 2012, Introduced by Reps. Ananich, Cavanagh, Tlaib, Irwin, Barnett, Brown, Hovey-Wright and Stanley 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 the 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, 2013, 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 employer 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, 2013 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 6 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 illness, injury, or health condition;

 

medical diagnosis, care, or treatment of the employee's mental

 

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

 

preventative medical care for the employee.

 

     (b) For the employee's family member's 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; a court order; or a signed statement from a victim

 

and witness advocate 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 and the employee does not have health

 

insurance, 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.

 

     (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) Nothing in sections 3 to 6 requires 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 paid sick leave that has not been used and the

 

reinstated employee shall be entitled to use accrued paid sick

 

leave and accrue additional paid sick leave upon reinstatement.

 

     (2) Nothing in this section or section 4 shall be construed to

 

require an employer to provide financial or other reimbursement to

 

an employee for accrued paid sick leave that has not been 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 retaliatory 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 section.

 

     (b) Informs any person about an employer's alleged violation

 

of this section.

 

     (c) Cooperates with the department or another person in the

 

investigation or prosecution of any alleged violation of this

 

section.

 

     (d) Opposes any policy, practice, or act that is prohibited

 

under this section.

 

     (e) Informs any person of his or her rights under this

 

section.

 

     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 discriminated against; 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 offer 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 section or of sections 3 to 6.

 

     (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 all 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) Nothing in sections 3 to 6 shall be construed to prevent

 

an employer from providing more paid sick leave than is required

 

under this act, to diminish any rights provided to any employee

 

under a collective bargaining agreement, or to preempt or override

 

the terms of any collective bargaining agreement in effect prior to

 

January 1, 2013.

 

     (3) Nothing in sections 3 to 6 shall be construed to 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, 2013.