FMLA - Michigan

Paid Medical Leave Act (appealed and voided)

Under the state Paid Medical Leave Act, effective March 2019, employers must provide employees with accrued paid medical leave for qualifying reasons.

Effective February 21, 2025, the PMLA is replaced by the Earned Sick Time Act.

Earned Sick Time Act (ESTA, effective February 21, 2025)

NOTE: This was expected to replace the Paid Medical Leave Act (PMLA) effective 2/20/23, as a judicial stay was set to expire on February 19, 2023. On January 26, 2023, however, the Michigan Court of Appeals ruled that the Michigan PMLA, as implemented in March 2019, would remain in place.

This was appealed to the Michigan Supreme Court, which voided the PMLA and ordered the Earned Sick Time Act to be reinstated as originally written effective February 21, 2025. On (and effective) February 21, 2025, the ESTA was amended by HB 4002.

Covered employers

All employers in Michigan with one or more employees. The one employee for ER coverage is determined by a nationwide count, but only employees in MI are entitled to the ESTA benefits. Independent contractors are not included as employees.

Employee eligibility

No real eligibility criteria. The ESTA applies to work performed by employees who are physically located in Michigan, regardless of the employer's location.

The ESTA applies to work performed by employees whose employment is based in Michigan who are sent out of state by their employer to work in another location.

An out-of-state employee coming into Michigan would not be covered unless the employee earned 50 percent or more of their compensation for time spent in Michigan.

The ESTA does not apply to employees covered by an employer policy that:

• Allows employees to schedule their own working hours.
• Prohibits the employer from taking adverse personnel action against employees if they do not schedule a minimum number of working hours.

Leave Entitlement

Employers with 1 – 10 employees must comply with the ESTA effective October 1, 2025. Effective October 1. 2025, employers with 1 – 10 employees:

• Must allow employees to accrue one hour of paid earned sick time for every 30 hours worked, OR frontload the leave at the beginning of a year.
• Must allow employees to accrue 40 hours of paid earned sick time. Employers may limit the carryover of leave to 40 hours.
• Must calculate and track an employee’s accrual of paid earned sick time.

Effective February 21, 2025, employers with 11 or more employees must allow employees to accrue up to 72 hours paid earned sick time. Employers may frontload the leave at the beginning of a year.

Employers may provide paid earned sick time to part-time employees at the beginning of a year for immediate use if employers meet the following:

• They provide part-time employees with a written notice of how many hours the employees are expected to work for a year at the time of hire.
• The amount of earned sick time provided to part-time employees at the beginning of the year is, at a minimum, proportional to the earned sick time that the part-time employees would accrue if the part-time employees worked all of the hours expected as provided in the written notice.
• If part-time employees work more hours than what is expected as provided in the written notice, the employer must provide the employees with additional earned sick time in accordance with the accrual requirements.

Employees retain all unused paid sick time if rehired within two months.

Employees begin accruing earned sick time on the effective date (2/21/25 for employers with 11 or more employees, or 10/1/25 for employers with fewer than 10 employees), or upon commencement of the employee’s employment, whichever is later.

For purposes of earned sick time accrual under this act, employees who are exempt from overtime requirements under the federal Fair Labor Standards Act are assumed to work 40 hours in each workweek unless the employee’s normal work week is less than 40 hours, in which case earned sick time accrues based upon that normal workweek.

Employees may use accrued earned sick time as it is accrued, except that employers may require employees hired after February 21, 2025, to wait 120 calendar days after hire before using accrued earned sick time.

Employers may not require employees to use their ESTA leave before using other types of leave.

If employers already provide paid leave that meets all the law’s requirements, they need not provide additional leave. If employers provide time off, such as PTO, vacation, or sick time that meets the ESTA’s accrual minimums, they need not give employees more time off under the ESTA.

If employers use the accrual method for calculating earned sick time, they may choose to have a policy that allows employees to be paid out or carry over up to 40 hours for small businesses, and 72 hours for other employers.

Employers may frontload full-time employees and use the accrual method for part-time employees.

Employees may take ESTA leave in increments aligned with the smallest unit the employer uses for other types of absences. If an employer tracks attendance and absences in increments of 1/10th of an hour (6 minutes), that would be the minimum increment permitted for using ESTA leave.

Employers must pay the greater of the employee’s regular hourly wage or the state minimum wage. They don’t have to include overtime pay, holiday pay, bonuses, commissions, supplemental pay, piece-rate pay, tips, or gratuities in the calculation of an employee's normal hourly wage or base wage.

Employers are not required to pay employees for unused accrued earned sick time at separation under the ESTA. Employers may pay out unused ESTA at termination or separation.

Employers that frontload ESTA can recoup leave used more than what would have been accrued as of the date of separation. They would determine the amount that would have been accrued as of the date of separation and recoup the value of leave used more than the employee’s adjusted leave balance, provided that this deduction does not reduce the final paycheck to less than minimum wage and the employer obtained a prior written, voluntary agreement for the deduction.

Employers may not require employees to search for or secure a replacement worker as a condition for using earned sick time.

Reasons for Leave

• The employee’s or the employee’s family member’s:
  • Mental or physical illness, injury, or health condition;
  • Medical diagnosis, care, or treatment of the employee’s or the employee’s family member’s mental or physical illness, injury, or health condition; or
  • Preventative medical care for the employee or the employee’s family member.
• 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.
• 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; and
• 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, regardless of whether the employee or family member has actually contracted the communicable disease.

Family members include:

• Biological, adopted, or foster children, stepchildren, legal ward, children of domestic partner, or children to whom the eligible employee stands in loco parentis.
• Biological parents, foster parents, stepparents, or adoptive parents or legal guardians 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.
• Individuals to whom eligible employees are legally married under the laws of any state.
• Domestic partners.
• Grandparents.
• Grandchildren.
• Biological, foster, step siblings, or adopted siblings.
• Any individual related by blood or affinity whose close association with an employee is equivalent to a family relationship.

“Domestic partner” means an adult in a committed relationship with another adult, including both same-sex and different-sex relationships.

“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.

Concurrency (with federal FMLA and other state leave laws)

ESTA may run concurrently with FMLA-approved leave, provided that the employee meets the eligibility criteria for both, and the reason qualifies for both. If employees are using ESTA, requirements for advance notice, unforeseeable leave, and documentation requirements, will be applied under the ESTA provisions.

Once ESTA leave is exhausted or not being used for FMLA or other covered leave, the FMLA or other leave provisions apply.

Reinstatement

Employer must not take retaliatory personnel action or discriminate against employees because the employees exercised a right protected under ESTA. Such retaliatory action includes, but is not limited to a threat, discharge, suspension, demotion, and reduction of hours.

Notices

If the need for earned sick time is not foreseeable, employers may require:

• The employee to give notice of the intention to use earned sick time as soon as practicable. Deciding what is practicable is dependent on the unique facts and circumstances of each situation. Notification as soon as practical for unforeseeable leave is also included in the Family Medical and Leave Act (FMLA). For consistency, the consideration under ESTA would be similar; or
• In accordance with the employer’s policy related to requesting sick time or leave if the employer provides to the employee a written copy of the policy that includes procedures for how the employee must provide notice and the employer’s notice requirement allows the employee to provide notice after the employee is aware of the need for earned sick time.

If the need for earned sick time is foreseeable, employers may require advance notice not to exceed 7 days before the date the earned sick time is to begin.

Employers must display a poster at the place of business containing specific rights listed in the ESTA.

Employers must also provide written notice of an employee’s rights under the ESTA at the time of hiring or on March 23, 2025, whichever is later. The poster may serve as notice contents. The notice is to include:

• The amount of earned sick time required to be provided to an employee.
• The employer’s choice of how to calculate a year.
• The terms under which earned sick time may be used.
• That retaliatory personnel action taken by the employer against an employee for requesting or using earned sick time for which the employee is eligible is prohibited.

Documentation

For earned sick leave of more than three consecutive days, employers may require reasonable documentation that the earned sick leave has been used for a qualifying reason. Upon request, the employee must provide this documentation in not more than 15 days after the employer’s request.

Employer required documentation should not include a description of the illness or details of the violence.

If employers require documentation, they are responsible for paying all out-of-pocket expenses the employee incurs in obtaining the documentation.

Employers may not delay commencement of the leave based on a failure to receive documentation.

Employers are to keep related records for at least three years.

Civil air patrol

Employers with at least one employee are to provide unpaid leave for employees who are members of the civil air patrols and need to be absent from work to respond to an emergency declared by the governor or the president of the U.S.

Employees are to provide as much notice of the leave as possible. Within 30 days of hire or when they join the civil air patrol, employees are to notify you that they may be called to an emergency. They are also to provide verification from the civil air patrol of the emergency need for the employee’s service.