United States: On The Rhode Again: Paid Sick Leave Drought Ends With New Rhode Island Law

After a nine-month drought in 2017, a new paid sick and safe leave law has been enacted in Rhode Island. Upon coming back into session in September, state legislators swiftly returned to advancing their identical paid leave proposals (H5413 and S290) and, after tweaking the bills, sent them to Governor Gina Raimondo (D), who signed the measures on September 28, 2017. The Healthy and Safe Families and Workplaces Act sets statewide standards. The provisions become operative on July 1, 2018, giving employers less than one year to review existing, or create new, policies to comply with the law.

Covered Employers, Employees, and Relations

The law requires employers with 18 or more employees in Rhode Island to allow employees to accrue and use paid sick and safe leave. It is unclear whether the law imposes unpaid leave requirements on smaller employers. It is hoped that the labor department will clarify this issue via guidance or regulations.

The law generally covers all employees, except: 1) individuals not considered employees under the Rhode Island Minimum Wage Act (e.g., outside salespeople, golf caddies, certain seasonal resort employees); 2) independent contractors; 3) subcontractors; 4) federal work-study participants; and 5) licensed nurses employed by a health care facility on a per diem basis.1

Like most paid sick leave laws, Rhode Island's allows employees to use leave for themselves or to care for or assist a "family member," which includes traditional family members – child, grandchild, grandparent, parent(-in-law), sibling, spouse – as well as care recipients (individuals for whom an employee is responsible for providing or arranging health- or safety-related care) and members of the employee's household.

Accrual, Caps, and Carryover

If an employer has a paid leave policy (PTO, vacation, etc.) that provides the amount of annual paid leave hours the law requires, or offers unlimited paid leave, it is exempt from the law's accrual, carryover, and use requirements even if an employee uses his or her paid leave for non-sick-leave purposes. For example, if an employer offers 40 hours per year of paid time off to use for vacations, sick, or other reasons, the employer is exempt from providing the sick leave mandated by the law.

Otherwise, employees begin to accrue leave when employment begins or July 1, 2018 – whichever is later – at a rate of one leave hour for every 35 hours worked, which varies from the more common one leave hour for every 30 hours worked requirement. FLSA-exempt executive, administrative, and professional employees accrue leave based on a 40-hour workweek or their normal workweek (if fewer hours are worked). Unless employers choose a higher annual limit, they must allow employees to annually accrue up to 24 hours in 2018, 32 hours in 2019, and 40 hours in subsequent years. Generally, accrued but unused leave must be carried over to the following year.

Instead of continually tracking accrual, employers can provide monthly lump sums of leave, the amount of which varies based on how many average hours an employee works per week; as does the number of monthly distributions an employer must make. In providing a monthly lump sum alternative, Rhode Island borrowed from Massachusetts' paid sick leave law, which has a similar provision. Additionally, the law allows employers to provide, at the beginning of a year, leave an employee is expected to accrue in a year.

If employers front load the required annual amount of leave at the beginning of each year, they are not required to track accrual or allow carryover of leave from year to year.2 Alternatively, if employers want to shift from an accrual-based to front-loading system, they can either carry over unused leave accrued under the accrual system, or cash out that leave at the end of the year, then front load the required amount when the subsequent year begins.

Using Leave

Unless an employer sets a higher limit, employees cannot annually use more than 24 hours in 2018, 32 hours in 2019, and 40 hours in subsequent years. The law allows employers to set a 90-day waiting period before newly hired employees can use leave. Additionally, unlike most other paid sick leave laws, it also restricts use to the 151st day of employment for seasonal employees (those hired into a position for which the customary annual employment is six months or less) and to the 181st day of employment for temporary employees (those working for, or obtaining employment per an agreement with, any employment agency, placement service, or training school or center).

The law allows leave to be used for the following sick time, safe time, and other purposes:

  • Mental or physical illness, injury or health condition of an employee or covered relation.
  • Medical diagnosis, care, or treatment of a mental or physical illness, injury or health condition of an employee or covered relation.
  • Preventive medical care for an employee or covered relation.
  • Leave related to domestic violence, sexual assault, or stalking impacting an employee or covered relation.
  • Closure of the employee's place of business, or a child's school or place of care, by order of a public official due to a public health emergency.
  • Health authorities or a health care provider determines the employee or covered relation's presence in the community may jeopardize others' health because of the individual's exposure to a communicable disease, whether or not the employee or covered relation has actually contracted the communicable disease.

If an employee is committing fraud or abuse by engaging in an activity that is inconsistent with the law's covered purposes, discipline – up to and including termination – may be imposed for leave misuse. Discipline may also be imposed if an employee is exhibiting a clear pattern of taking leave on days just before or after a weekend, vacation, or holiday, unless the employee provides reasonable documentation that leave was used for a covered purpose.

Employees decide how much leave they need to use, unless this conflicts with state or federal law. However, an employer may set a minimum increment for leave use that cannot exceed four hours per day, and must be reasonable under the circumstances.

Requesting and Documenting Leave

Leave must be provided upon an employee's request, which can be made orally, in writing, electronically, or by any other means acceptable to an employer. An employer cannot require an employee to disclose details relating to domestic violence, sexual assault, sexual contact, stalking, or health information, as a condition of providing leave. When possible, a request must include the absence's expected duration. If leave is foreseeable, an employee must provide advance notice, and must make a reasonable effort to schedule use in a manner that does not unduly disrupt the employer's operations. If an employer wants to require notice for unforeseeable absences, it must institute and provide to employees a written policy with procedures for providing notice. If employees are not provided a copy of the policy, leave cannot be denied because of non-compliance with the policy.

If an employer gave employees advance written notice of the requirement, it may require reasonable documentation that leave of more than three consecutive work days was for a covered purpose. Additionally, written documentation may be required if leave is used during an employee's final two weeks of employment; another instance of Rhode Island borrowing from Massachusetts' law. Documentation signed by a health care professional indicating that leave is necessary is considered reasonable documentation for sick time, and the law provides employees various options for documenting safe time, e.g., an employee's written statement, a police report, a court document, or a signed statement from a victim and witness advocate. An employer cannot require documentation to explain the nature of an illness or the details of domestic violence, sexual assault, or stalking unless required by another law. Additionally, an employer's requirements cannot unreasonably burden an employee, exceed other laws' privacy or verification requirements, or require an employee to incur unreasonable expenses. If an employer possesses health information or information pertaining to domestic violence, sexual assault, sexual contact, or stalking, it must be kept confidential and cannot be disclosed except to the affected employee or with the employee's permission, unless required by law.

Payment for Leave

Leave must be paid at the same hourly rate and with the same benefits – including health care benefits – an employee normally earns during hours worked, but in no case less than that the state minimum wage.

End of Employment Issues

Cash-out of accrued but unused leave is not required when employment ends. If an employee is rehired within 135 days of separation by the same employer, previously accrued but unused leave must be reinstated, and the employee can use it and accrue additional leave when employment recommences.

Notice Requirements, Penalties, Damages, and Enforcement

The law's notice and enforcement requirements are pegged to similar provisions in the Rhode Island Minimum Wage Act (RIMWA) (and, by reference in the RIMWA, the wage payment law). The RIMWA requires employers to display a state-created poster, so possibly the state labor department will revise the minimum wage poster or create a standalone paid sick leave poster. Under the RIMWA, aggrieved individuals are entitled to relief per the wage payment law, which allows a current or former employee, or an organization representing such employee, to file a lawsuit against an employer within three years of the alleged violation and, if successful, be awarded unpaid wages and/or benefits, compensatory damages, liquidated damages up to twice the amount of unpaid wages and/or benefits, equitable relief – including reinstatement of employment, fringe benefits and seniority rights – reasonable attorneys' fees and cost, and other appropriate relief or authorized penalties.3 Additionally, the RIMWA allows complaints to be filed with the state labor department within the same timeframe.

Miscellaneous

Employers and employees can mutually agree to allow the employee, instead of using accrued leave for a covered purpose, to work an equivalent number of additional hours or shifts during the same or the next pay period. However, an employer cannot require, as a condition of providing leave, that employees search for or find a replacement worker to cover the hours during which they will use leave.

If an employer transfers a covered employee within Rhode Island, the employee is entitled to, and can use, all pre-transfer accrued but unused leave. When a different employer succeeds or takes the place of an existing employer, all original-employer employees that remain employed by the successor employer within Rhode Island are entitled to, and can use, all accrued original-employer leave.

What's Next?

For most of 2017, no new paid sick and safe leave laws were enacted. Even if Rhode Island had not broken this streak with its new law, employers are potentially facing new paid leave requirements in other jurisdictions across the country. On September 26, 2017, Tacoma, Washington finalized amendments to its paid leave law to conform requirements to the state law that will take effect on January 1, 2018. A proposed ordinance was introduced in Portland, Maine, and on September 28, 2017, the Austin, Texas City Council approved a resolution directing the city manager to solicit stakeholder input about implementing a paid sick leave ordinance and report findings at a December 5, 2017 City Council work session. On October 3, 2017, voters in Albuquerque, New Mexico will decide whether to approve a paid sick leave ballot measure. Additionally, we are possibly weeks away from Duluth, Minnesota's task force putting forth its proposal.

In the interim, businesses with Rhode Island operations should monitor the state labor department's website for guidance and regulations that (hopefully) will clarify existing requirements and fill gaps in the law (e.g., how specific types of employees must be paid).

Footnotes

1 Use of the term per diem herein relates to registered nurses that are not obligated to work a regular schedule, work only when they indicate availability to work without an obligation to work if availability is not indicated, and receive higher pay than employees of the same facility performing the same job on a regular schedule.  The law appears to have intended to delay applicability to construction industry employees covered by a collective bargaining agreement, but, as written, the "delayed" comply-by date is July 1, 2018, which is when the law applies. We hope the state labor department will clarify this provision via guidance or regulations.

2 The law allows for pro rata frontloading for full-time employees whose workday is less than eight hours per day—the equivalent of five days. If a workday were eight hours, five days would be 40 hours, but employers are not required to provide that amount of leave until, at the earliest, 2020. Regulations might clarify this issue.

3 The only penalty expressly provided for in the paid sick leave law is at least a $100 civil penalty for a first violation, with subsequent violations being subject to penalties within the RIMWA. It is expected that the state labor department will clarify via guidance or regulations which RIMWA penalties, if any, will apply for subsequent violations.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Sebastian Chilco
 
In association with
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.