Summary: On July 31, 2024, the Michigan Supreme Court ruled in Mothering Justice v. Attorney General that the Michigan state legislature’s 2018 adoption and amendment to the Michigan Earned Sick Time Act (MI ESTA) was unconstitutional. As a result, nearly all Michigan employers will be required to provide employees with more generous paid sick leave than what is currently required under Michigan’s current paid sick leave law called The Paid Medical Leave Act, beginning on February 21, 2025.
The Mothering Justice decision brings the ongoing Michigan paid sick leave litigation to a final close regarding the constitutionality of the ESTA amendment made to the law when it was first proposed as a citizen ballot initiative in 2018.
Read on for more information and next steps for employers.
MI ESTA Background
The Mothering Justice lawsuit revolved around actions of the Michigan state legislature to quickly enact an amended version of the MI ESTA with significant changes, and renamed The Paid Medical Leave Act (MI PMLA).
In 2018, the paid sick leave requirements under the MI ESTA and minimum wage law[1] ballot initiatives were sent to the Michigan legislature. The legislature adopted the measures intact, resulting in their removal from the ballot for the 2018 election. Following the election and within the same legislative session, the legislature significantly amended both laws, becoming effective in 2019[2].
Mothering Justice, a labor advocacy organization, along with other groups, sued to challenge the constitutionality of the state legislature's actions with respect to both laws. The lawsuit worked its way through Michigan state courts, with the Michigan Court of Claims first ruling in favor of Mothering Justice and then the Michigan Court of Appeals reversing that decision. It ultimately ended up at the Michigan Supreme Court.
The Michigan Supreme Court reversed the Court of Appeals decision and ruled that the Michigan legislature’s “adopt-and-amend” procedural actions with respect to both laws violated the Michigan Constitution. The Mothering Justice decision by the Michigan Supreme Court reinstated the MI ESTA and the minimum wage law as they initially appeared on the ballot initiatives. Both the MI ESTA and the minimum wage law will go into effect on February 21, 2025.
Notably, the decision confirmed that employers will not be held liable for reasonably relying on state government assurances that MI PMLA and the amended minimum wage law were “good law,”[3] providing welcome relief for Michigan employers who have continued to comply with the MI PMLA.
Michigan Paid Sick Leave Changes in 2025
The table below highlights the paid sick leave changes that employers will be required to implement for their employees working in Michigan, as a result of the Mothering Justice decision, starting on February 21, 2025.
Note that the MI ESTA requirements in certain instances are significantly more generous to employees than the current MI PMLA requirements.
|
Paid Sick Leave Requirement
|
Michigan Paid Medical Leave Act (currently in effect)
|
Michigan Earned Sick Time Act (in effect on February 21, 2025)
|
|
Covered Employers
|
Employers with 50 or more employees
|
All employers with one or more employee(s)
|
|
Eligible Employees
|
All employees, except for:
- collectively bargained employees,
- employees who worked less than 25 hours per week on average in the preceding calendar year, and
- employees exempt from overtime under the Fair Labor Standards Act (FLSA).
|
All employees except those employed by the United States government.
|
|
Covered Use Reasons
|
Employees may take paid sick leave for the following reasons for themselves or a family member:
- care for or treat mental or physical illness, injury, or condition;
- obtain preventative medical care;
- closure of an employee’s workplace or child’s school/daycare due to a public health emergency;
- exposure to a communicable disease;
- absence due to domestic violence and sexual assault situations.
|
Same as MI PMLA covered use reasons and also including absences for meetings at a child's school or place of care related to the child's health or disability, or the effects of domestic violence or sexual assault on the child.
|
|
Definition of Family Member
|
Family member includes spouse, children, grandchildren, parents, grandparents, siblings, as well as children for whom the employee stands in loco parentis.
|
Same as MI PMLA family member definition and also including the following individuals:
- domestic partner, and
- “any other individual related by blood or affinity whose close association with the employee is the equivalent of a family relationship.”
|
|
Accrual Amount Limits
|
One hour of paid sick leave for every 35 hours worked, up to 40 hours per year.
|
One hour of paid sick leave for every 30 hours worked, up to 72 hours a year.
Employers with 10 or fewer employees (“small business” under MI ESTA): One hour of paid sick leave for every 30 hours worked, up to 40 hours per year. If an employee of a small business accrues more than 40 hours of earned sick leave in a calendar year, the employee will be able to use an additional 32 hours of unpaid earned sick leave in that year.
|
|
Carryover Rules
|
Employees may carry up to 40 hours of paid sick leave per year.
|
No cap on carryover since paid sick leave carries over from year to year.
|
|
Frontloading
|
Frontloading 40 hours at the beginning of the year is permitted in lieu of carrying over accrued, unused paid sick leave.
|
No specific provisions related to frontloading.
|
|
Increments of Use
|
Paid sick leave must be used in one-hour increments unless the employer has a different increment policy set forth in writing in an employee handbook or other employee benefit document.
|
Paid sick leave may be used in the smaller of one-hour increments or the smallest increment that the employer's payroll system uses to account for absences or use of other time.
|
|
Employee Notice & Documentation
|
Employees must follow the employer’s usual and customary notice, procedural, and documentation requirements for requesting leave when using paid sick leave. Employers must give employees three days to provide documentation related to the use of paid sick leave.
|
An employer may require reasonable documentation that the paid sick leave has been used for covered use absences of more than three consecutive days.
|
|
Unlawful Retaliation/Interference
|
No specific unlawful retaliation or unlawful interference provisions.
|
Employers are prohibited from interfering with an employee requesting or taking MI ESTA time or taking retaliatory action against an employee for requesting. exercising. or enforcing rights under MI ESTA.
|
|
Enforcement
|
Employees may file a claim with the Michigan Department of Licensing and Regulatory Affairs (the Department) within six months after the alleged violation.
|
Employees may file a civil action within three years after the alleged violation or the date when the employee knew of the violation, whichever is later. Employees may file a claim with the Department as well within three years since filing a claim is neither a prerequisite nor a bar to bringing a civil action.
|
|
Recordkeeping
|
Employers must retain records that document the hours worked and paid sick leave taken by employees for not less than one year.
|
Employers must retain records that document the hours worked and paid sick leave taken by employees for not less than three years.
|
|
Reinstatement of Paid Sick Leave upon Rehire
|
Employer is not required to reinstate any unused paid sick leave upon rehire of an employee.
|
Employers must reinstate previously accrued, unused paid sick leave for an employee to use if the employee is rehired within 6 months of the separation of employment.
|
|
Waiting Period
|
Employers may prohibit the use of paid sick leave until a new employee’s 90th calendar day of employment.
|
Same as MI PMLA
|
|
Payout Upon Termination
|
Employers are not required to pay out unused, accrued paid sick leave upon termination of employment.
|
Same as MI PMLA
|
Employer Next Steps
Employers with employees working in Michigan should be aware of the Mothering Justice decision by the Michigan Supreme Court, which significantly expands paid sick leave rights for Michigan employees. Nearly every employer in the state will be covered under the MI ESTA and will be required to provide paid sick leave to their employees, beginning on February 21, 2025.
Additionally, employee eligibility for MI ESTA will broaden to apply to virtually all employees working in Michigan, with the exception of individuals employed by the United States government.
As the February 21, 2025 effective date approaches for MI ESTA requirements, employers with Michigan-based employees are advised to begin working with their employment and labor counsel now on the following items to ensure compliance:
- Review and update, as necessary, leave policies and procedures, taking into account previously excluded employees who will now be eligible for MI ESTA paid sick leave
- Previously exempted employers (those employing 50 or fewer employees) will be required to provide paid sick leave and develop applicable MI ESTA policies and procedures
- Review and update, as necessary, attendance and payroll systems, especially accounting for the higher accrual amount limits than required under MI PMLA
- Train Human Resources team members and other employees who manage employee leaves
- Communicate these MI ESTA changes to employees
- Monitor the Michigan state webpage for the updated MI ESTA model postings and notices (when available), as well as additional MI ESTA guidance
Risk Strategies helps employers navigate the ever-changing and complex state/local paid leave landscape. Contact us directly at benefits@risk-strategies.com.
[1] The minimum wage law titled “The Improved Workforce Opportunity Wage Act” provides for an accelerated minimum hourly wage and tip credit schedule. Discussion of the Michigan minimum wage law is beyond the scope of this article.
[2] The MI PMLA went into effect on March 29, 2019.
[3] The Mothering Justice decision continued on regarding this point and stated that “’injustice might result’ if courts punished employers for following the law as provided on the state’s official websites.”