“[Attorney General Dana Nessel] has the opportunity to be our hero,” said mom and Mothering Justice activist Aisha Wells.
INKSTER, Mich.—Getting a job that provides paid sick leave was a lifesaver for Christina Hayes—almost literally.
Now she’s joined an effort encouraging Michigan’s Attorney General Dana Nessel to grant that reprieve to all Michiganders, and, she argues, all it would take is a stroke of a pen.
Hayes has lupus. Her body’s own immune system attacks her organs, causing swelling that can lead to damage to the joints, skin, kidneys, blood cells, brain, heart and lungs. It causes fatigue, fever, chronic pain, skin lesions from sun exposure, confusion, memory loss, shortness of breath, and can turn fingers and toes blue during high-stress moments, among other symptoms.
“It’s what they call an invisible illness,” Hayes told The ‘Gander. “You can’t see from the outside that a person is struggling with a lot of pain on the inside of their body, so I deal with people saying ‘but you don’t look sick’ all the time. That’s a struggle in itself, just carrying such a heavy weight while nobody knows what you’re going through.”
As a Black woman diagnosed at 19, Hayes is practically the textbook definition of the average person living with lupus. That’s made proper medical care immensely important in her life, especially since she became a mother as lupus is believed to be linked to genetics.
Healthy Bodies or Healthy Bank Accounts
For much of her adult life, Hayes had to weigh the medical care she needs against losing the money she needs to support herself and her child.
“My issue came about while I was working for a major cable company and at the time I was dealing with kidney failure,” Hayes recounted. “To actually make sure my health was doing okay, the requirement was to set up monthly doctor’s appointments and blood draws to make sure that I was okay, and then I started getting chemotherapy.”
Hayes said she’s always been a fighter when facing her disease. Having a child only fueled her fire to stay healthy and manage her health. But the realities of choosing between physical and financial health were complicated.
“It was hard for me to take off work because I had used up all of my vacation days,” she said. “But the bills were coming and my daughter, I needed to pay for daycare for her, and you’ve got a car so there’s car insurance. You just stop thinking about your health and you put that on the back burner. So I stopped going to my blood draws and my doctor appointments.”
Eventually, though, she didn’t have a choice in the matter. She passed out at work one day, and learned that deprioritizing health in order to pay the bills can be a risky mistake.
Her condition is stable now, and as a gate agent for an airline she gets the kind of paid time off she needs to see to her condition without losing the funds to support herself and her daughter. As a self-described “mamavist,”—a mom and activist—Hayes wants to make sure others don’t wind up taking the risks she did in her previous job.
“There is a way to make work work for people like me, people with chronic illness,” she said. “Even though I have it, I’m just still concerned for the people who don’t have access to paid leave.”
She’s brought that mamavism to that issue, sharing her story with Mothering Justice, a Detroit-based advocacy group working on women’s rights issues in the state of Michigan.
Parenting Without Leave
As part of her activism alongside Mothering Justice, Hayes works with Aisha Wells. Wells is Mothering Justice’s lead paid family leave organizer and found herself joining Mothering Justice after similar events.
Wells’ son has asthma, hydrocephalus, cerebral palsy, and a number of other conditions. If not properly treated, his health conditions could be fatal. Now that she works at Mothering Justice she has the leave she needs to take care of her son, but that hasn’t always been the case.
“I have a great understanding for what mamas are going through, and caregivers go through on a regular basis,” Wells told The ‘Gander. “I’ve worked in retail and other industries where I had to figure out ‘okay, how can I have this day off, or finagle my time?’ You think about that, you’re thinking about a mom who’s missing $200, $300, $400 out of their paycheck.”
That, she said, is ultimately the same as Hayes’ situation, being left to choose between paying bills and staying home to take care of the health of her child or herself. That isn’t something people should be forced to struggle with on a regular basis, Wells said.
“Those are not choices that we should be giving folks,” she said. “If we had adequate sick time, which would have been 72 hours I believe which is roughly about nine working days … What would that have done for the pandemic? What would that have done for folks who were feeling sick? ‘Oh, I’m feeling real ill, let me stay home and get well’ instead of going into work, and you work at a restaurant, or you’re a teacher.”
Restaurant workers going into work sick has been a real concern during the pandemic, prompting some restaurants to reevaluate their own paid sick leave policies. But the risk of sick workers in food service settings isn’t new. There’s a long history of other high-profile contagious events in the restaurant industry.
Famously, in December of 2015 an employee at a Chipotle in Boston came to work while sick with the norovirus, a highly contagious illness that causes stomach problems including frequent diarrhea and vomiting. They were ordered to continue working despite vomiting at work, leading to over 140 people contracting the virus, including a college basketball team whose catering was prepared by the employee. For this and similar violations between 2015 and 2018, Chipotle paid $25 million in fines.
Changing Everything in Michigan Overnight
Wells explained to The ‘Gander that Michigan’s policy on paid sick leave could feasibly change overnight. All it would take is one letter from the Attorney General.
Dana Nessel has the power to grant paid sick leave and a minimum wage boost to Michiganders nearly effortlessly thanks to how fundamentally strange the last few months of former Gov. Rick Snyder’s term became. In those last months of 2018, Michigan’s Republican-led legislature employed a variety of partisan approaches to tie the hands of incoming Democrats and block policies they disagreed with despite public support.
The election of Gov Gretchen Whitmer on the horizon as her opponent, then-Attorney General Bill Schuette, wasn’t bringing the polling numbers needed to win. And a pair of proposals called One Fair Wage and MI Time to Care were heading to the ballot box in an election shaping up to be a Democratic landslide.
Those proposals would not only create a framework for accrued sick leave in Michigan but would’ve also raised the minimum wage to $12 per hour in the state by the beginning of next year. Wells said the initiatives both had more than 70% of Michiganders behind them.
Hayes worked on those proposals.
“We went door-to-door collecting signatures from everyone, telling them the importance of paid leave,” Hayes remembered. “We got all the signatures and it was so awesome. We took pictures of us delivering the boxes and, you know, getting them verified, and they got verified. And we were about to be put on the ballot.”
This spurred the Legislature to make a move as unprecedented as it was nakedly partisan. They’d adopt the legislation, something Michigan allows the Legislature to do, and then slice and dice it to a shadow of what voters were asking for.
“They took it off the ballot and just decided to go ahead and chop it all up,” Hayes said. “Even though we were all so excited at the fact that yes, now it was recognized that this was needed and it was passed, it was just not what we asked for. So now we’re still in that fight to try and make changes and make it what we were originally asking for.”
What Adopt and Amend Is, and How Nessel Can Fix It
The Legislature chose to adopt the proposals to keep them off the ballot.
Normally, if a proposal is adopted by the Legislature, it can’t be changed until the next Legislature, and crucially in 2018 the next governor, are both sworn in. But the entire reason the Legislature adopted them is that changing ideas adopted from the Legislature is far easier than changing ideas voted on by the people.
In the last few days of Snyder’s time as governor, after the people of Michigan voted for a change in direction for the state’s leadership, Schuette fired one last salvo against the incoming governor who’d bested him at the ballot box. He changed longstanding Michigan law to allow Republicans to totally gut the will of the people they had enacted just three months earlier.
“Schuette came out with an opinion that reversed the Kelley Opinion,” Wells explained. “The Kelley Opinion has been around for over 40 years. Kelley was a respected attorney general. And he already made a ruling on this a long, long time ago that you couldn’t adopt and amend in the same legislative cycle. Schuette then overruled that.”
The Kelley Opinion, named for former Attorney General Frank Kelley, was issued in 1964, explicitly stating that adopted initiatives could only be changed in the next legislative session or after. Schuette reversed that with a letter practically in an instant. And now Mothering Justice is asking Nessel to do the same.
“Right now, the attorney general can rescind the Schuette Opinion and return it to the original opinion, which was Kelley,” said Wells. “Which would restore those two ballot initiatives to their original versions.”
Nessel hasn’t done so, despite calls from parents like Hayes and Wells, which prompted Mothering Justice to file a lawsuit, Mothering Justice v. Nessel, that would have the courts reestablish the Kelley Opinion. Lawsuits about the adopt and amend strategy had been previously avoided by Michigan’s Supreme Court, but after the 2020 election that might not be true a second time.
Though she agrees that the adopt and amend strategy was unconstitutional, Nessel had been encouraging Mothering Justice to take the slower approach of suing the State of Michigan, putting tension between the allies. She’s bristled at being a named party in Mothering Justice’s suit and having so much attention focused on her role in this issue. It’s a tension Mothering Justice didn’t want, and still hopes can be resolved with the creation of a Nessel Opinion.
“We did not want to sue her. That was not the initial thought, that was not the initial process,” Wells explained. “That’s still not what we want to do. She has the opportunity to be our hero. She has the opportunity to restore something that was taken away from Michigan workers. I hope the understanding is that we’re trying to work with her, and that she’s always been an ally for us, with us. We just want to continue that allyship and support the people in our communities.”
All Nessel has to do to be Wells’ hero, and the hero of everyone Mothering Justice represents, is write a letter saying what she already believes that Schuette was wrong and adopt and amend is an unconstitutional strategy. That would instantly change everything for working Michiganders and bring paid sick leave to the entire state.