Paid Medical Leave Act in General
The recently enacted Paid Medical Leave Act (PMLA) requires entities which employ 50 or more individuals to provide paid medical leave for their eligible employees and family members.
March 29, 2019
Any employer (aside from certain governments) that employs 50 or more individuals is subject to the law, regardless of where those employees work or live. However, even though the employer would be subject to the law, employees whose primary work location is outside of Michigan would not be protected by it. So if you had 55 employees with 45 working out of state, the law only applies to the 10 working in Michigan.
Significantly, eligible employees do not include individuals who are exempt from overtime requirements under the FLSA section 13(a)(1), non-public agency employees covered by CBAs currently in effect, federal or state (or political subdivision) government employees, employees in a job scheduled for 25 weeks or less (and work 25 weeks or less), employees who worked on average less than 25 hours per week during the immediately preceding calendar year, variable hour employees (as defined under Pay or Play), as well as a few other exceptions (including certain employees under the railroad unemployment insurance act, railway labor act, MI employment security act, and improvement opportunity wage act).
The definition of family member is broad and includes:
- A biological, adopted or foster child, stepchild or legal ward, or a child to whom the eligible employee stands in loco parentis.
- A biological parent, foster parent, stepparent, or adoptive parent or a legal guardian of an eligible employee or an eligible employee’s spouse or an individual who stood in loco parentis when the eligible employee was a minor child.
- An individual to whom the eligible employee is legally married under the laws of any state.
- A grandparent.
- A grandchild.
- A biological, foster, or adopted sibling.
Therefore, if an employee’s brother is ill, the employee is allowed to take leave to care for his/her brother.
Basis of Accrual
The employer can provide paid medical leave on either: (1) an accrual basis (of at least one hour for every 35 hours worked – cannot be less than 40 hours in a benefit year) or (2) can front at least 40 hours of paid leave at the beginning of the benefit year (and can prorate for mid-year hires).
If the accrual basis is used, an employer is not required to allow the employee to accrue more than 1 hour per calendar week and may limit the accrual and use of paid medical leave to 40 hours per benefit year. However, the employer must allow the employee to carryover at least 40 hours of unused accrued paid medical leave from one benefit year to the next.
If the front load option (of at least 40 hours) is used, the employer is not required to allow the eligible employee to carry over any of the paid leave to another benefit year.
For new hires, an employer can require a 90 day waiting period after hire to use any accrued paid leave.
The paid medical leave must be provided at a pay rate equal to the greater of the normal hourly wage / base wage for that eligible employee or the minimum wage rate under the improved workforce opportunity wage act. 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.
Use of Medical Leave
Leave can be used for personal or family health needs, domestic violence and sexual assault (documentation can be required but cannot ask details), missing work due to closed schools (to take care of children) or closed work for public health emergencies, and for issues with regard to communicable diseases. Specifically, paid medical leave is for:
- 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.
- 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.
- If the eligible employee or the eligible employee’s family member is a victim of domestic violence or sexual assault, 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.
- For closure of the eligible employee’s 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 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.
Eligible employees must comply with the employer’s usual and customary notice, procedural and documentation requirements for requesting leave; however, the employer must give the employee at least 3 days to provide the documentation. Furthermore, the law has parameters on documentation required for domestic violence or sexual assault. If you require such documentation, you should discuss these parameters with legal counsel.
Additionally, unless the employer has a different written increment policy in an employee handbook or other benefits document, paid leave must be used in 1 hour increments.
Employers who transfer to other divisions, entities or locations but remain employed by the same employer are allowed to retain all accrued paid medical leave. However, if the employee separates from service and is rehired, the accrued paid leave may be lost. There are no requirements to reimburse employees for unused time.
Notice and Document Retention
You are required to display a poster at your place of business, in a conspicuous and accessible place, containing the amount of paid leave required, the terms under which the paid medical leave may be used, and the employee’s right to file a complaint with the department for any violation. The department will create and make said posters available at no cost.
Finally, PTO records shall be retained for not less than 1 year and are subject to inspection.
For violations of the law, the department may impose penalties and grant an eligible employee or former eligible employee payment of all paid medical leave improperly withheld. Employers failing to provide paid medical leave are also subject to an administrative fine of not more than $1,000.00. Additionally, an administrative fine of not more than $100.00 may be imposed for each separate violation of the posting requirement.
This communication serves solely as a general summary and does not constitute legal advice, and cannot be used or substituted for legal advice.
Elizabeth H. Latchana specializes in employee health and welfare benefits. Recognized for her outstanding legal work, in both 2018 and 2015, Beth was selected as “Lawyer of the Year” in Lansing for Employee Benefits (ERISA) Law by Best Lawyers, and in 2017 as one of the Top 30 “Women in the Law” by Michigan Lawyers Weekly. Contact her for more information on this reminder or other matters at 517.377.0826 or firstname.lastname@example.org.