By Joseph M. Cooper and Meghan E. Siket

In February 2017, Rhode Island legislators proposed a bill that would require employers to provide paid sick leave to employees. Prior to their summer recess, the house and senate passed different versions of the bill (House Bill 5413 and Senate Bill 290). When the General Assembly reconvened on September 19, legislators approved a slightly revised version of the bill called the Healthy and Safe Families and Workplace Act. Governor Gina Raimondo signed the bill into law on September 28.

When does the law take effect?

The Act takes effect on July 1, 2018, which gives employers less than a year to ensure that their leave policies comply with the law.

What are the law’s basic requirements?

The Act requires employers with 18 or more employees to allow employees to accrue at least one hour of paid sick leave for every 35 hours worked, up to 24 hours in 2018. The maximum amount of leave will increase to 32 hours in 2019 and 40 hours in 2020 and subsequent years. Employees who take paid sick leave must be paid at the same hourly rate and be provided with the same benefits, including healthcare benefits, they normally earn. Employees may not be paid less than the state minimum wage in any case.

The Act allows employees to use leave for their own illness or to care for or assist a “family member,” which includes traditional family members (i.e., children, grandchildren, grandparents, parents, parents-in-law, siblings, and spouses) as well as care recipients and members of employees’ households. Care recipients are individuals for whom an employee is responsible for providing or arranging health- or safety-related care.

When do employees begin accruing sick time?

Employees must begin accruing sick time at the commencement of employment or on July 1, 2018, whichever is later. However, employers may require a waiting period of up to 90 days before newly hired employees can use accrued paid sick time. Employees who are exempt from the Fair Labor Standards Act’s (FLSA) overtime requirements are presumed to work 40 hours per week for purposes of the sick leave law unless their normal workweek is less than 40 hours.

Employers that prefer not to continually track accrued sick time may provide monthly lump sums of leave based on how many hours employees work per week on average. The law also permits employers to provide an annual lump sum of paid leave that employees are expected to accrue over a year.

Does sick time carry over from year to year?

Accrued but unused sick leave must be carried over to the following calendar year, but total accrual may be capped at 32 hours in 2019 and 40 hours in subsequent years. Alternatively, employers may pay out accrued, unused sick time at year’s end.

Are there limitations on the use of paid sick time?

An employer may require that sick time be used in minimum increments of up to four hours per day, provided the requirement is reasonable under the circumstances. If an employee commits fraud or abuse by engaging in an activity that is inconsistent with the law’s purposes, the employer may impose discipline, up to and including termination. Similarly, discipline may be imposed if an employee exhibits a clear pattern of taking leave on days just before or after a weekend, vacation, or holiday unless he provides reasonable documentation that leave was used for a covered purpose. Documentation supporting the need for time off may be required only for leave that lasts more than three consecutive workdays.

What about transfers, terminations, or takeovers?

Employees who are transferred to a different location or division in Rhode Island but remain employed by the same employer are entitled to retain and use all sick time they accrued at the previous workplace.

Payout of accrued, unused sick leave is not required upon termination of employment. However, if there is a separation from employment and an employee is rehired by the same employer within 135 days, the employee is entitled to all previously accrued sick leave and will begin accruing additional leave at the recommencement of employment.

If a new employer succeeds or takes the place of an existing employer, all employees who remain employed by the successor employer in Rhode Island are entitled to all leave they accrued under the original employer.

Are any employees exempt?

Federal, municipal, and state employees are excluded from the law, as are certain per diem nursing employees. Also, there are special accrual rules for temporary and seasonal employees.

What about small employers?

Employers with 17 or fewer employees must offer the same amount of sick time, but it may be unpaid.

What to do now?

Review your current paid leave policies to determine whether changes need to be made to comply with the new law. Employers that already offer employees paid time off (PTO) that may be used for sick leave purposes (e.g., vacation, personal time, and paid leave) and meets the law’s minimum accrual and carryover requirements are considered to be in compliance with the new law already. For example, if an employer has a policy that grants employees 40 hours of PTO per year to use for vacation, sick leave, or other purposes, the employer is already in compliance with the law’s mandatory sick leave provisions.

To discuss this further, please contact Joe Cooper directly at jcooper­ or 401-270-01800.