Paid sick leave: What to know about the Michigan law before the Supreme Court

Update: Michigan Supreme Court hears debate on minimum wage, sick leave laws

Michigan’s paid sick leave law will be in the spotlight Wednesday as the state’s high court hears arguments about whether Republican changes to the measure violate the state’s constitution.

The review by the Michigan Supreme Court, through a request for an advisory opinion, is the latest step in the debate over mandatory sick leave. The question centers on whether the Legislature acted lawfully when it adopted a citizen-led petition on paid sick leave and then curtailed its protections in the same legislative session, as Republicans did in 2018.

Republicans, who hold majorities in the House and Senate, maintain the Legislature is permitted to do so. Progressives and labor advocates, who saw their original proposal passed and then neutered by Republicans, called the tactic an affront to democracy and have vowed to sue. In an attempt to sidestep expensive litigation, legislative Republicans asked the state’s highest court for its opinion.

The court is not obligated to issue an advisory opinion, a rare action done outside the typical litigation process. And although the justices will hear arguments Wednesday, they have not yet said whether they eventually will weigh in on the matter.

The high court is also considering similar tactics used by the GOP majority to gut proposed hikes to the state’s minimum wage. The state’s current wage law was passed and altered at the same time as the sick leave law. 

Here’s what to know about Wednesday’s oral arguments:

How does the sick leave law on the books differ from what was proposed?

Michigan was among a majority of states that did not require employers to provide paid leave if workers or their families became sick.

So last year, the MI Time to Care ballot committee collected enough signatures across the state to get the issue on the November ballot. Under the group’s proposal, Michigan workers would earn one hour of paid sick leave for every 30 hours worked. Those sick leave hours accrued until hitting 72 hours, or nine days of sick leave per year. Businesses with fewer than 10 employees had to offer less paid leave (40 hours), though their workers would be eligible for up to another 32 hours off unpaid.

Before voters can weigh in on a citizen-backed proposal, the state constitution gives the Legislature an opportunity to adopt it into law, which the GOP-led House and Senate did in September.

If voters had passed the original proposal, Republicans would need 75 percent majorities in both chambers to later amend it. By adopting it themselves, lawmakers were able to change it by a simple majority vote in lame duck session in December.

Under the GOP legislative changes, which currently stand, a business with fewer than 50 employees is exempt from mandatory paid sick leave. Larger companies are required to provide leave, but the Republican-amended law also requires employees to work 35 hours (rather than 30) for each sick leave hour earned, and reduced the number of sick leave hours a worker could accrue in a year from 72 hours to 40.

Advocates of the original ballot language say the more generous worker sick leave provisions are necessary to protect workers’ rights and preserve financial stability for them and their families.

Business groups and legislative Republicans said the changes were well-intended, but had to be scaled back to avoid harming the state’s economic gains.

There is no federal paid sick leave law.

What does the research say about the impact of paid sick leave proposals?

Unlike minimum wage, which has a volume of academic research about the economic effects, the impact of paid sick leave requirements has been less well-studied, said Tom Buchmueller, a professor of business economics and public policy at the University of Michigan, whose expertise includes health policy issues.

That’s in part because until recently, paid sick leave has not been mandated in the United States, Buchmueller told Bridge, minimizing the economic data available.

A third of Americans who worked full time in 2011 did not have paid sick leave benefits, according to a study by professor Nicolas Ziebarth of Cornell University and Swiss researcher Stefan Pichler.

Such policies were implemented in a number of cities, including San Francisco, Seattle and New York over the last dozen years; Connecticut was the first state to do so earlier this decade.

In one example, the Cornell researcher studied historical public flu data and found that instances of influenza-like illness declined as more people were able to access sick leave benefits. This suggested more people stayed home when they felt ill, reducing the spread of disease to colleagues.

Buchmueller, of the University of Michigan, said he has not seen much research on the effects of paid sick leave policies on job loss, turnover, and the cost-benefit of such policies.

Data about the number of days of sick leave workers take, their productivity on the job, or the likelihood that they got a coworker sick are not likely to be measured in government surveys or other credible data sources, Buchmueller said.

“The full effects will have to wait and see,” he said. “If more states do this, this may be a growing area of research. I think you can definitely predict that there will be [a] benefit to the employees that get the sick leave.”

The question, he said, is: “What’s the impact on employers? And are there these offsetting benefits in the form of improved health (and increased productivity) that maybe soften the impact on employers?”

What happens next?

Advocates for the original proposal say they are determined to see their sick leave policy become law in Michigan.

It’s not clear what the Supreme Court will opt to do, nor how an advisory opinion, if the court decides to issue one, will be received. The court has held that advisory opinions of the state’s high court don’t have precedent the same way a decision reached through a lawsuit does.

Attorney General Dana Nessel, a Democrat, declined to issue her own opinion earlier this year, citing the ongoing Supreme Court review. Yet Nessel’s office said it could revisit the issue if the Supreme Court declines to weigh in.

“If they leave a door open, then I presume that the attorney general gets into action quickly, trying to put a case together” opposing the GOP-backed law, said John Chamberlin, a professor emeritus of public policy at the University of Michigan.

He added that challengers ultimately might decide to file a lawsuit if unsatisfied with the outcome at the Supreme Court. It’s also possible that a ballot committee could attempt to muster support for changing how lame-duck session operates.

“It’s such an unusual proceeding that I don’t quite know what the precedents are,” Chamberlin said.