Ask The Lawyer By: Daniel A. Gwinn, Esq. Who’s Lying?

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QUESTION: I read online in one piece that Gov. Gretchen Whitmer claims 77 percent of workers in private businesses don’t have any paid medical leave; in another piece, from businesses, I read that about 77 percent of workers in private industry DO have paid medical leave. Who’s lying?

ANSWER: Neither side is lying — the problem is the statistics the governor and businesses refer to are talking about different kinds of leave.

In a “What’s Next” speech at the end of August, the governor proposed paid medical leave to allow workers time to recover from an illness, bond with a newborn, or care for a family member who is ill. The kind of leave the governor envisions would be closer to the federal Family and Medical Leave Act that requires most businesses to offer up to 12 weeks of unpaid leave for the purposes cited in her proposal.

Nationwide, very few private workers receive that kind of long-term paid time off. According to the Department of Labor, in 2022, only 24 percent of private sector workers in the United States had access to paid family leave. Looked at the other way, this means 76 percent of private sector workers do not receive any kind of paid FMLA-type leave — a statistic that is in line with the governor’s claim.

In contrast, most Americans workers in the private sector do receive some kind of paid time off or paid sick time — 77 percent, according to the Bureau of Labor statistics. So, businesses are also correct. But the amount of time off given under a paid sick time or paid medical leave plan differs.   In Michigan, for example, all businesses with at least 50 employees must provide at least 40 hours of leave that can be used for medical reasons each year. According to 2021 data, about 33 percent of Michigan’s private sector workers are employed by a business with few than 50 employees.

Nationwide, workers who receive paid sick time get an average of 7 days after a year on the job — an amount that remains unchanged after 5 years of employment. Many workers, who need more significant time off for an illness or pregnancy, rely on short-term disability insurance; about 50 percent of workers receive access to such insurance through their employer. But access to insurance is not the same thing as free insurance — employees usually pay some or all of the premium.

            Until Michigan’s legislature passed the Paid Medical Leave Act in 2018, private employers in Michigan were not required to provide any paid leave at all. No vacation days, sick days, or paid holidays.

That is in line with federal law. The United States is the only prosperous nation that does not mandate paid time off of some kind and is also the only economically developed country that does not require at least some paid time off for maternity leave (Greece requires 43 weeks). In fact, many businesses are not even required to offer unpaid leave for new parents or for workers who have to address a serious illness or medical condition, or those who need time to care for a loved one with a serious illness. The federal FMLA, like Michigan’s Paid Medical Leave Act, only applies to private businesses with at least 50 workers.

Despite the lack of a federal or state requirement, the majority of businesses give their workers time off — paid or unpaid. Businesses have realized that giving workers some time off not only makes for a happier workforce, it also contributes to a strong economy. Way back in 1922, Henry Ford established a 40-hour, 5-day work week (at a time when workers were lucky to have any day off). The two days of free time not only increased productivity, it also created an additional market for goods and services, helping the economy grow. Away from work, employees had more time to spend their earnings.

Government workers and those who are represented by a union are more likely than their private sector counterparts to receive paid family and medical leave. State of Michigan employees, for example, have been eligible for paid family and medical leave since October 2020.

In the private sector, employers’ willingness to provide paid FML increases with the value it assigns to its workers. About 43 percent of workers in the top 10 percent of earnings received paid leave in 2021, compared to just 6 percent of those in the bottom 10 percent. Larger employees, whether unionized or not, are also more likely to offer paid family and medical leave.

While businesses are leery of the cost of providing paid leave, numerous studies suggest that paid leave has positive economic effects, including improved employee retention — especially among women — improved participation in the work force, and improved productivity.

And, in a country that says it cares greatly about the health and wellbeing of babies and children, paid family and medical leave offers another very real benefit: Infants whose mothers are able to take time off in the vital early weeks of life are more healthy during those weeks, develop improved brain function and are less likely to become ill as children.

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By: Daniel A. Gwinn, Esq.
Attorney and Counselor at Law
900 Wilshire Drive, Suite 104
Troy, MI 48084
(248) 970-0310
(248) 970-0311 facsimile
[email protected]