Ask The Lawyer, Fired for Taking sick Time?
WORKER FIRED AFTER BEING OFF WITH THE FLU. WHAT HAPPENED TO PAID LEAVE?
QUESTION: Until two weeks ago, I was an hourly worker at a Detroit warehouse. I got a really bad case of the flu, so I missed five days of work. I called in each day. I don’t have good insurance, so I didn’t see a doctor. When I returned to work, my supervisor told me I was only allowed three days off, and said I would be disciplined for missing the two extra days. Then he asked me for a doctor’s note. When I told him I didn’t go to a doctor, he fired me. Isn’t there a law that says workers have to get some sick time when they need it?
ANSWER: There is such a law: the Paid Medical Leave Act, which went into effect on March 29, 2019. The PMLA requires employers with at least 50 employees to provide hourly, non-exempt workers at least one hour of paid leave for every 35 hours worked, to a maximum of 40 hours per year. Assuming your employer has at least 50 employees and that you had earned 40 hours of accrued time off (and had not used any of your accrued time for any purpose). If you were eligible for paid time off, your employer’s abrupt decision to discharge you may have violated the law.
Section 4(2) o the PMLA states that when an eligible employee asks for paid medical leave, he or she must comply with the employer’s “usual and customary notice, procedural, and documentation requirements for requesting leave.” An employer may discharge or discipline an eligible employee who fails to follow the employer’s policies. However, the law requires an employer to give workers “at least 3 days to provide the employer with documentation,” and the policies should be in writing and clearly communicated to employees.
Assuming you had complied with your employer’s policies on requesting leave, you were entitled to three days to produce a note from a doctor. Because your supervisor did not give you that time, he most likely violated the law. The Department may impose penalties against the employer, and “grant an eligible employee or former eligible employee payment of all paid medical leave improperly withheld.”
Because you do not seem to be familiar with the law, we suspect it is likely your employer also failed to follow the law’s requirement that employers display a poster, “in a conspicuous place that is accessible to eligible employees,” that explains the right to medical leave, and an employee’s right to file a complaint with Michigan’s Department of Licensing and Regulatory Affairs (LARA).
You have six months from the date of the alleged violation to file a claim with LARA. The PMLA does not state whether an eligible employee who has accrued paid sick time and is discharged after taking sick time can request reinstatement. The parameters of the law are still being established, through case law, as workers and employers challenge the application of the law’s provisions in court. The constitutionality of the PMLA itself is currently under review by Michigan’s Supreme Court.
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By: Daniel A. Gwinn, Esq.
Attorney and Counselor at Law