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SICK TIME OR VACATION TIME? HOW YOU USE PTO IS UP TO YOU

QUESTION:  In June, I took a week off to stay with my daughter, who had just had her first baby. I took the time off as vacation, and was paid for it. Last week I was sick with what was probably stomach flu and missed a couple of days work. My boss told me I am not eligible for any paid sick time of because I used all my PTO in June. I thought there was a law requiring employers to give workers paid time off when they are sick, apart from any time off they receive as vacation.

ANSWER:     Michigan’s Paid Medical Leave Act, MCL 408.961 et seq. does require businesses that employ at least 50 people to provide workers with paid time off when they, or a family member, are ill. Under the law, eligible employees accrue one hour of paid medical leave for every 35 hours worked, for up to 40 hours per year.

The law, however, does not require that paid medical leave be set up in a separate pot of hours from general paid time off — like vacations or personal days. An employer who provides at least 40 hours of paid leave is presumed to be in compliance with the law. For many workers who were already receiving 40 hours of PTO a year, the 2018 law — which became effective in 2019 — did not affect the status quo: They received no more days off than they had before.

To receive sick time as paid time off, many workers may need to take some additional hours off, in the form of a visit to a doctor, to document that they were ill. Under the PMLA, employers are allowed to ask for a physician’s note when an employee seeks paid medical leave.

The bottom line is that many workers must choose between using PTO for something pleasant, like a holiday or time with a brand new grandchild (congratulations!), and staying home from work when they are ill. According to a 2019 survey, 90 percent of professionals report to work when they are sick. Almost half show up because they do not want to use paid time off. Employees who had no leave available said they could not afford to stay home.

During the pandemic, some employers changed their sick-leave plans to discourage sick employees from going to work, although the vast majority — 73 percent — made no changes in their plans, according to a report by the U.S. Bureau of Labor Statistics. The fear that workers with COVID-19 might show up on the job prompted state and federal government legislators to modify sick leave policies. The federal Emergency Paid Sick Leave Act — which expires this week — gives workers up to 80 hours of paid sick leave for the following reasons related to COVID-19

• They subject to federal, state or local quarantine or isolation order related to COVID-19, or
• have been advised by health care provider to self-quarantine because of COVID-19; or
• are experiencing symptoms of COVID-19 and are seeking a medical diagnosis;
• they are caring for someone to whom (1) or (2) applies;
• they are caring for a child whose school, daycare, or child care has been closed or is unavailable due to COVID-19;
• or they are experiencing “any other substantially similar condition.”

            No extension of the EPSLA was contained in the $900 billion stimulus package signed by President Donald Trump on Dec. 27.

Michigan’s law, also set to expire on Dec. 31, requires workers who display symptoms of COVID-19 to stay home, but does not require them to be paid, beyond any hours already accrued under the PMLA. The law protected workers from being discharged or otherwise retaliated against for staying home.

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ASK THE LAWYER
By: Daniel A. Gwinn, Esq
.Attorney and Counselor at Law
GWINN LEGAL PLLC
901 Wilshire Drive, Suite 550
Troy, MI 48084
(248) 247-3300
(248) 247-3310 facsimile
[email protected]
www.gwinnlegal.com