Earned Sick Time Act
Frequently Asked Questions
The Earned Sick Time Act (ESTA) is a Michigan law going into effect on February 21st that will mandate employers of all sizes provide all employees (regardless of status) with paid sick time based on hours worked. ESTA time can be used for a variety of purposes include the employee’s own health-related reasons, a family member’s health-related reason, and to care for someone who is like family to the employee. Documentation requirements are limited and the risks associated with non-compliance are unprecedented – including a private right of action for employees who feel their ESTA rights have been violated! MVMA hosted a webinar on January 22 with Jodi Schafer, SPHR, SHRM-SCP, Owner of Human Resource Management Services, discussed how the Earned Sick Time Act will affect veterinary practices and their employees.
FAQ Follow Up from January Lunch and Learn Webinar
ESTA Frequently Asked Questions
ESTA Resource List
Did you miss the Lunch and Learn webinar, "How the Earned Sick Time Act will Affect Your Practice" with Jodi Schafer, SPHR, SHRM-SCP, Owner and Principal, Human Resource Management Services On January 22? There is still time to register and view this on-demand. Learn More Here
Need to speak to an expert? Jodi Schafer and HRM Services can help:
FAQ Follow Up from January Lunch and Learn Webinar
What if you do not have a handbook, or offer PTO or vacation time?
ALL employers doing business in Michigan (or those who have employees working in Michigan), regardless of size, will be required to offer paid sick time under ESTA. The United States Government is the only employer exempted under this Act.
Does ESTA apply to 1099 employees or those who work few hours?
ESTA applies to ALL employees regardless of status or hours worked such as full-time, part-time, hourly, salary, temporary and seasonal. Every W-2 position is covered by the Act, including roles such as coaches, election workers, seasonal positions, elected positions, interns, student employees and board members. Independent contractors (those paid via 1099) are NOT covered under ESTA.
Can we front load the ESTA hours at the beginning of the year?
There is no prohibition preventing an employer from providing the total amount of sick time at the beginning of the 12-month period so long as the accrual amount calculated is accurate and all other provisions of the Act are followed. Frontloading hours does not eliminate the need for periodic comparisons of hours worked vs. ESTA hours accrued/awarded, nor does it make reporting requirements any easier to comply with.
Do I need to somehow carry over any hours earned but not used into the next pay period or are they just lost?
Employers must allow employees to rollover any unused earned sick time from one year to the next. There is no cap on the amount of unused time that can rollover. There is only a cap on the number of hours an employee can USE each year (72 hours).
If my salary workers work varying hours week to week (associate doctors per se), we require them to clock in for stats can we just track ESTA time with hours worked vs. salary?
If you pay via a percentage how do you calculate hours? Do they have to punch in?
According to the Act, “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 eared sick time.” So, employers would need to look at the prior pay period for that employee to determine their average hourly wage and then use that amount when paying for the ESTA absence. Because the rate of pay may change from pay period to pay period based on the work performed by these employees, this calculation will need to be done each time an employee in this category uses ESTA.
For questions regarding compliance with existing sick time policies vs. when an employee may use ESTA:
An employer shall permit an employee to use the accrued earned sick time for any of the following:
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.
An employer shall not require an employee to search for or secure a replacement worker as a condition for using earned sick time.
May an employer require an employee to provide notice of and documentation for the use of earned sick time?
If the need for earned sick time is foreseeable, an employer may require advance notice, not to exceed seven days prior to the date the earned sick time is to begin, of the intention to use the earned sick time.
If the need for earned sick time is not foreseeable, an employer may require the employee to give notice of the intention as soon as practicable. Deciding what is practicable is dependent on the unique facts and circumstances of each situation, and the parties should approach this requirement with reasonable minds. 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.
For earned sick leave of more than three consecutive days, an employer may require reasonable documentation that the earned sick leave has been used for a permissible purpose. Upon request, the employee must provide this documentation in a timely manner.
Employer required documentation should not include a description of the illness or details of the violence.
If an employer requires documentation, the employer is responsible for paying all out-of-pocket expenses the employee incurs in obtaining the documentation.
An employer cannot delay commencement of the leave based on a failure to receive documentation.
May an employer ask questions regarding the need for using earned sick leave?
When using leave under ESTA, employees should provide sufficient information for the employer to determine whether the leave meets the eligible uses under the ESTA. If an employer is unsure, they may ask additional questions about the nature of the leave to determine if the leave meets the eligible uses.
What recourse does an employer have for an employee failing to follow established notice and documentation policies?
Employers may not retaliate against an employee for engaging in activity protected by the act. Importantly, there is a rebuttable presumption that an employer violated the act if it takes any adverse personnel action against an employee within 90 days after the employee engages in protected activity.
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