In a nutshell:
- Paid sick time is on the national agenda and likely to gain prominence in 2019.
- Last year, Michigan became 11th state to enact a paid sick time law.
- Michigan’s law, originally approved as citizen-initiated petition, was adopted and later amended during the same legislative session to align with similar laws in other states.
- The controversy over modifying the original law during lame duck may lead to lawsuits, a referendum, or another ballot drive.
Issues around workplace fairness – paid sick time, minimum wage increases, laws barring pregnancy discrimination – have been hot nationally and it looks like further attention will be given to them in 2019. Michigan enacted new laws related to paid sick time and minimum wage late in 2018, and while the ink is barely dry, they are poised to be the center of further public debate.
Enacted in September, amended in December
A citizen-initiated law was enacted by the legislature in September to avoid it going on the ballot as proposed. As originally passed, it provided generous benefits to almost all Michigan workers. The law provided up to 72 hours of paid sick time a year; small businesses with fewer than 10 employees were required to provide 40 hours paid and 32 hours unpaid time. It also defined family members broadly and allowed paid sick time to be used for many purposes, including health care, school meetings, and closures due to public health emergencies.
The law was enacted by a Republican-led legislature at the urging of the business community with the unstated intent to amend many of its provisions during the lame duck legislative session – that post-election time during which many legislators are voting in their last days as elected officials.
The amended law, signed by Governor Snyder before leaving office, allows employees to accrue one hour of sick time for every 35 hours worked up to 40 hours total. As amended, the law exempts employers with fewer than 50 employees and provides additional exemptions (e.g., individuals exempt from overtime requirements, etc.). It also does not include domestic partners as family members and disallows school meetings as an allowable use of paid sick time.
Now how does the law compare with others?
Michigan is the 11th state with a paid sick time law on the books. Most other states cap paid sick time at 24 to 40 hours and exempt more types of employees than Michigan’s original law. Some states also placed more restrictions on the uses of paid sick time.
The amended law brings Michigan’s more in line with others in both hours granted and exemptions. About half of the state laws allow benefits for domestic partners.
What’s in store – another ballot drive?
Progressive groups say that lawmakers gutted the original law and have undermined the spirit of the initiative by limiting its benefits. MI Time to Care, the group behind the 2018 petition drive, recently filed a petition to launch a 2020 ballot drive to possibly bring the issue back to the ballot. If that occurs, Michigan will join Maine, which already has a paid sick leave initiative slated for the ballot in 2019.
Another option being considered by supporters is pursuing a voter referendum on the amended law. A referendum effort would require supporters to gather signatures from registered voters equal to five percent of the number of votes cast for governor in the last election. This is not a minor task. The 2018 election saw high voter turnout, meaning that 212,530 signatures would be required.
If supporters gather enough signatures, the newly amended laws would be suspended until they can be voted on at the 2020 election. This means the original citizen-initiated law would be enacted until the referendum; the results of which would determine which version of the paid sick time law would ultimately take effect.
Supporters of the original law are also considering legal options, mostly focused on the legality of the adopt-and-amend strategy. A 1964 Attorney General opinion argued that the legislature cannot adopt and amend citizen initiatives in the same legislative session. The new legislative session brings a new governor and legislators, and waiting would have made the law harder to amend. However, the outgoing attorney general, Bill Schuette, opined that no such prohibition exists and the legislature was within its rights to adopt and amend citizen initiatives in the same legislative session.
Who is correct? Time, and possibly the courts, may tell. While these attorney general opinions are binding, they can be overturned by the courts.