2021 -- S 0612

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LC002111

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     STATE OF RHODE ISLAND

IN GENERAL ASSEMBLY

JANUARY SESSION, A.D. 2021

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A N   A C T

RELATING TO LABOR AND LABOR RELATIONS -- HEALTHY AND SAFE FAMILIES

AND WORKPLACES ACT

     Introduced By: Senators Goldin, Goodwin, Cano, Mendes, Mack, and Murray

     Date Introduced: March 11, 2021

     Referred To: Senate Labor

     It is enacted by the General Assembly as follows:

     SECTION 1. Sections 28-57-3, 28-57-4, 28-57-5, 28-57-6 and 28-57-14 of the General

Laws in Chapter 28-57 entitled "Healthy and Safe Families and Workplaces Act" are hereby

amended to read as follows:

     28-57-3. Definitions.

     As used in the chapter, the following words and terms have the following meanings:

     (1) "Care recipient" means a person for whom the employee is responsible for providing

or arranging health- or safety-related care, including, but not limited to, helping the person obtain

diagnostic, preventive, routine, or therapeutic health treatment or ensuring the person is safe

following domestic violence, sexual assault, or stalking.

     (2) "CCAP family childcare provider" means a childcare worker as defined in § 40-6.6-

2(2).

     (3) "Child" means a person as defined in § 28-41-34(1).

     (4) "Department" means the department of labor and training.

     (5) "Domestic partner" means a party to a civil union as defined in chapter 3.1 of title 15

or a person who meets the requirements in §§ 36-12-1(3)(i) through (3)(v) has the same meaning

as that term is defined in § 8-8.2-20.

     (6) "Domestic violence" means certain crimes when committed by one family or household

member against another as defined in § 12-29-2.

     (7) "Employee" means any person suffered or permitted to work by an employer, except

for those not considered employees as defined in § 28-12-2. Independent contractors,

subcontractors, work study participants as described pursuant to 42 U.S.C. § 2753.23,

apprenticeships and interns as defined under FLSA section 3(g) shall not be considered to be

employees for the purpose of this act.

     (8) "Employer" means any individual or entity that includes any individual, partnership,

association, corporation, business trust, or any person or group of persons acting directly or

indirectly in the interest of an employer, in relation to an employee as defined in § 28-12-2, but

does not include the federal government, and provided that in determining the number of employees

performing work for an employer as defined in 29 C.F.R. § 791.2 of the Federal Fair Labor

Standards Act, 29 U.S.C. § 201 et seq., the total number of employees in that group shall be

counted.

     (9) "Family member" means a child, parent, spouse, mother-in-law, father-in-law,

grandparents, grandchildren, or domestic partner, sibling, care recipient, or member of the

employee's household.

     (10) "Healthcare professional" means any person licensed under federal or Rhode Island

law to provide medical or emergency services, including, but not limited to: doctors, nurses, and

emergency room personnel.

     (11) "Paid sick leave time" or "paid sick and safe leave time" means time that is

compensated at the same hourly rate and with the same benefits, including healthcare benefits, as

the employee normally earns during hours worked and is provided by an employer to an employee

for the purposes described in §§ 28-57-6 or 28-57-16, but in no case shall the hourly wage paid

leave be less than that provided under § 28-12-3.

     (12) "Parent" means a person as defined in § 28-41-34(5) or a person as defined in § 28-

41-34(9).

     (13) "Seasonal employee" means a person as defined in 26 C.F.R. § 54.4980H-1(a)(38).

     (14) "Sexual assault" means a crime as defined in § 11-37-2, 11-37-4 or 11-37-6.

     (15) "Sibling" means a brother or a sister, whether related through half blood, whole blood,

or adoption, a foster sibling, or a step-sibling.

     (16) "Spouse" means a person as defined in § 28-41-34(7).

     (17) "Stalking" means a crime as described in §§ 11-59-2 and 11-52-4.2.

     (18) "Temporary employee" means any person working for, or obtaining employment

pursuant to an agreement with any employment agency, placement service, or training school or

center.

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     (19) "Unpaid sick time" is time that is used for the purposes described in § 28-57-6.

     (20) "Year" means a regular and consecutive twelve-month-period as determined by the

employer; except that for the purposes of § 28-57-7, "year" means a calendar year.

     28-57-4. Exemptions.

     (a) Nothing in this chapter shall be construed to conflict with the provisions of the Food

Code or the Rules and Regulations pertaining to Reporting Infectious, Environmental and

Occupational Diseases.

     (b) Any employer with a paid leave time off policy or paid sick and safe leave policy who

makes available at least twenty-four (24) hours during calendar year 2018, thirty-two (32) hours

during calendar year 2019 and forty (40) hours per calendar year thereafter of paid time off or paid

sick and safe leave time to employees or any employer who offers unlimited paid time off or paid

sick and safe time is exempt from § 28-57-5(a), (b), (c) and (e); provided, however, that such

employers are required to comply with § 28-57-16. In addition to complying with § 28-57-16,

employers. Employers that provide at least twenty-four (24) hours during calendar year 2018,

thirty-two (32) hours during calendar year 2019, and forty (40) hours per calendar year thereafter

of paid sick or safe leave or paid time off that can be used for the purposes consistent with this act

at the beginning of each benefit year do not need to track accrual, allow any carryover, or payout.

     (c) Any employer that employs less than eighteen (18) employees as defined in this act is

exempt from § 28-57-5; provided, however,:

     (1) that any Any such employer shall not take an adverse action against an employee of the

employer solely based upon the employee's use of up to twenty-four (24) hours during calendar

year 2018, thirty-two (32) hours during calendar year 2019, and forty (40) hours per calendar year

thereafter, subject to § 28-57-6 and § 28-57-10; and

     (2) Any such employer shall comply with § 28-57-16.

     (d) Any employer is not required to provide any paid sick and/or safe leave time to any

employees who are employed by a municipality or the state.

     (e) Any employer in the construction industry, as classified as code under the North

American Industry Classification System, is not required to provide any paid sick and/or safe leave

time to any employees who work under a collective bargaining agreement until July 1, 2018.

     (f) Any With the exception of § 28-57-16, any employee licensed to practice nursing

pursuant to chapter 34 of title 5 is not subject to the provisions of this chapter if the employee:

     (1) Is employed by a healthcare facility;

     (2) Is under no obligation to work a regular schedule;

     (3) Works only when he or she indicates that he or she is available to work and has no

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obligation to work when he or she does not indicate availability; and

     (4) Receives higher pay than that paid to an employee of the same healthcare facility

performing the same job on a regular schedule.

     28-57-5. Accrual of paid sick and safe leave time.

     (a) All employees employed by an employer of eighteen (18) or more employees in Rhode

Island shall accrue a minimum of one hour of paid sick and safe leave time for every thirty five

(35) hours worked up to a maximum of twenty-four (24) hours during the calendar year of 2018,

thirty-two (32) hours during calendar year 2019 and up to a maximum of forty (40) hours per year

thereafter, unless the employer chooses to provide a higher annual limit in both accrual and use. In

determining the number of employees who are employed by an employer for compensation, all

employees defined in § 28-57-3(7) shall be counted.

     (b) Employees who are exempt from the overtime requirements under 29 U.S.C. §

213(a)(1) of the Federal Fair Labor Standards Act, 29 U.S.C. § 201 et seq., will be assumed to work

forty (40) hours in each work week for purposes of paid sick and safe leave time accrual unless

their normal work week is less than forty (40) hours, in which case paid sick and safe leave time

accrues based upon that normal work week.

     (c) Paid sick and safe leave time as provided in this chapter shall begin to accrue at the

commencement of employment or pursuant to the law's effective date [July 1, 2018], whichever is

later. An employer may provide all paid sick and safe leave time that an employee is expected to

accrue in a year at the beginning of the year.

     (d) An Except as provided in § 28-57-16, an employer may require a waiting period for

newly hired employees of up to ninety (90) days. During this waiting period, an employee shall

accrue earned sick time pursuant to this section or the employer's policy, if exempt under § 28-57-

4(b), but shall not be permitted to use the earned sick time until after he or she has completed the

waiting period.

     (e) Paid sick and safe leave time shall be carried over to the following calendar year;

however, an employee's use of paid sick and safe leave time provided under this chapter in each

calendar year shall not exceed twenty-four (24) hours during calendar year 2018, and thirty-two

(32) hours during calendar year 2019, and forty (40) hours per year thereafter, in addition to any

paid sick leave time provided pursuant to § 28-57-16. Alternatively, in lieu of carryover of unused

earned paid sick and safe leave time from one year to the next, an employer may pay an employee

for unused earned paid sick and safe leave time at the end of a year and provide the employee with

an amount of paid sick and safe leave that meets or exceeds the requirements of this chapter that is

available for the employee's immediate use at the beginning of the subsequent year.

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     (f) Nothing in this chapter shall be construed as requiring financial or other reimbursement

to an employee from an employer upon the employee's termination, resignation, retirement, or other

separation from employment for accrued paid sick and safe leave time that has not been used.

     (g) If an employee is transferred to a separate division, entity, or location within the state,

but remains employed by the same employer as defined in 29 C.F.R. § 791.2 of the Federal Fair

Labor Standards Act, 29 U.S.C. § 201 et seq., the employee is entitled to all paid sick and safe leave

time accrued or provided pursuant to this chapter at the prior division, entity, or location and is

entitled to use all paid sick and safe leave time as provided in this act. When there is a separation

from employment and the employee is rehired within one hundred thirty-five (135) days of

separation by the same employer, previously accrued or received paid sick and safe leave time

pursuant to this chapter that had not been used shall be reinstated. Further, the employee shall be

entitled to use accrued paid sick and safe leave time accrued or received pursuant to this chapter

and accrue additional sick and safe leave time at the re-commencement of employment.

     (h) When a different employer succeeds or takes the place of an existing employer, all

employees of the original employer who remain employed by the successor employer within the

state are entitled to all earned paid sick and safe leave time they accrued or received pursuant to

this chapter when employed by the original employer, and are entitled to use earned paid sick and

safe leave time previously accrued or received pursuant to this chapter.

     (i) At its discretion, an employer may loan sick and safe leave time to an employee in

advance of accrual by such employee.

     (j) Temporary employees shall be entitled to use accrued paid sick and safe leave time

pursuant to this section beginning on the one hundred eightieth (180) calendar day following

commencement of their employment, unless otherwise permitted by the employer. On and after the

one hundred eightieth (180) calendar day of employment, employees may use paid sick and safe

leave time pursuant to this section as it is accrued. During this waiting period, an employee shall

accrue earned sick time pursuant to this chapter section, but shall not be permitted to use the earned

sick time until after he or she has completed the waiting period.

     (k) Seasonal employees shall be entitled to use accrued paid sick and safe leave time

pursuant to this section beginning on the one hundred fiftieth (150) calendar day following

commencement of their employment, unless otherwise permitted by the employer. On and after the

one hundred fiftieth (150) calendar day of employment, employees may use paid sick and safe

leave time as it is accrued pursuant to this section. During this waiting period, an employee shall

accrue earned sick time pursuant to this chapter section, but shall not be permitted to use the earned

sick time until after he or she has completed the waiting period.

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     28-57-6. Use of paid sick and safe leave time.

     (a) Paid sick and safe leave time accrued under § 28-57-5 shall be provided to an employee

by an employer for:

     (1) An employee's mental or physical illness, injury, or health condition; an employee's

need for medical diagnosis, care, or treatment of a mental or physical illness, injury, or health

condition; an employee's need for preventive medical care;

     (2) Care of a family member with a mental or physical illness, injury, or health condition;

care of a family member who needs medical diagnosis, care, or treatment of a mental or physical

illness, injury, or health condition; care of a family member who needs preventive medical care;

     (3) Closure of the employee's place of business by order of a public official due to a public

health emergency or an employee's need to care for a child whose school or place of care has been

closed by order of a public official due to a public health emergency, or care for oneself or a family

member when it has been determined by the health authorities having jurisdiction or by a healthcare

provider that the employee's or family member's presence in the community may jeopardize the

health of others because of their exposure to a communicable disease, whether or not the employee

or family member has actually contracted the communicable disease; or

     (4) Time off needed when the employee or a member of the employee's family is a victim

of domestic violence, sexual assault, or stalking.

     (b) Paid sick and safe leave time shall be provided upon the request of an employee. Such

request may be made orally, in writing, by electronic means, or by any other means acceptable to

the employer. When possible, the request shall include the expected duration of the absence.

     (c) When the use of paid sick and safe leave time is foreseeable, the employee shall provide

notice of the need for such time to the employer in advance of the use of the sick and safe leave

time and shall make a reasonable effort to schedule the use of sick and safe leave time in a manner

that does not unduly disrupt the operations of the employer.

     (d) An employer that requires notice of the need to use earned paid sick and safe leave time

where the need is not foreseeable shall provide a written policy that contains procedures for the

employee to provide notice. An employer that has not provided to the employee a copy of its written

policy for providing such notice shall not deny earned paid sick and safe leave time to the employee

based on noncompliance with such a policy.

     (e) Unless otherwise in conflict with state or federal law or regulations, an employee may

decide how much sick time to use; provided, however, that an employer may set a minimum

increment for the use of sick time, not to exceed four (4) hours per day, provided such minimum

increment is reasonable under the circumstances.

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     (f) For paid sick and safe leave time of more than three (3) consecutive work days, an

employer may require reasonable documentation that the paid sick and safe leave time has been

used for a purpose covered by subsection (a) of this section if the employer has notified the

employee in writing of this requirement in advance of the employee's use of paid sick and safe time.

An employer may not require that the documentation explain the nature of the illness or the details

of the domestic violence, sexual assault, or stalking unless required by existing government

regulation or law. Nothing in this provision shall be construed to conflict with existing government

regulation or law.

     (1) An employer may require written documentation for an employee's use of earned sick

time that occurs within two (2) weeks prior to an employee's final scheduled day of work before

termination of employment.

     (2) Documentation signed by a healthcare professional indicating that paid sick leave time

is necessary shall be considered reasonable documentation under subsection (a) of this section.

     (3) One of the following, of the employee's choosing, shall be considered reasonable

documentation of an absence under subsection (a)(4) of this section:

     (i) An employee's written statement that the employee or the employee's family member is

a victim of domestic violence, sexual assault, or stalking and that the leave taken was for one of the

purposes of § 28-57-6(a)(4);

     (ii) A police report indicating that the employee or employee's family member was a victim

of domestic violence, sexual assault, or stalking;

     (iii) A court document indicating that the employee or employee's family member is

involved in legal action related to domestic violence, sexual assault, or stalking; or

     (iv) A signed statement from a victim and witness advocate affirming that the employee or

employee's family member is receiving services from a victim services organization or is involved

in legal action related to domestic violence, sexual assault, or stalking.

     (g) An employer's requirements for verification may not result in an unreasonable burden

or expense on the employee and may not exceed privacy or verification requirements otherwise

established by law.

     (h) Paid sick and safe leave cannot be used as an excuse to be late for work without an

authorized purpose.

     (i) If an employee is committing fraud or abuse by engaging in an activity that is not

consistent with allowable purposes for paid sick and safe leave in this section, an employer may

discipline the employee, up to and including termination of employment for misuse of sick leave.

     (j) If an employee is exhibiting a clear pattern of taking leave on days just before or after a

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weekend, vacation, or holiday, an employer may discipline the employee for misuse of paid sick

and safe leave, unless the employee provides reasonable documentation that the paid sick and safe

leave time has been used for a purpose covered by subsection (a) of this section.

     (k) An employer may not require, as a condition of providing earned paid sick and safe

time under this chapter, that the employee search for or find a replacement worker to cover the

hours during which the employee is using paid sick and safe leave time. However, if an employee

is absent from work for any reason listed in § 28-57-6(a) and by mutual consent of the employer

and the employee the employee works an equivalent number of additional hours or shifts during

the same or the next pay period as the hours or shifts not worked due to reasons listed in § 28-57-

6(a), an employee shall not be required to use accrued and earned paid or unpaid sick time for the

employee's absence during that time period, and the employer shall not be required to pay for sick

time taken during the time period.

     28-57-14. Allowable substitution of employers' paid sick and safe leave time.

     (a) Employers may have different paid leave policies for different groups of employees,

provided that all policies meet the minimum requirements of this chapter.

     (b) Employers that prefer not to track accrual of paid sick and safe leave time under § 28-

57-5 over the course of the benefit year may also use the following schedules for providing lump

sums of sick leave or paid time off to their employees. Employers With the exception of additional

paid sick leave time required under § 28-57-16, employers using these schedules will be in

compliance with the requirements of accrued paid sick and safe leave time pursuant to § 28-57-5

even if an employee's hours vary from week to week. For employees working an average of:

     (1) Thirty-seven and one-half (37.5) to forty (40) hours per week, provide eight (8) hours

per month for five (5) months;

     (2) Thirty (30) hours per week, provide five (5) hours per month for eight (8) months;

     (3) Twenty-four (24) hours per week, provide four (4) hours per month for ten (10) months;

     (4) Twenty (20) hours per week, provide four (4) hours per month for nine (9) months;

     (5) Sixteen (16) hours per week, provide three (3) hours per month for ten (10) months;

     (6) Ten (10) hours per week, provide two (2) hours per month for ten (10) months;

     (7) Five (5) hours per week, provide one hour per month for ten (10) months.

     (c) In the case of an employer whose regular work day for full-time employees is less than

eight (8) hours per day, if the employer provides five (5) days of paid sick and safe time leave

consisting of the number of hours per day that constitute that full-time employee's work day and

provides them at the beginning of the year, the employer shall be in compliance with this subsection

the requirements of accrued paid sick and safe leave time pursuant to § 28-57-5. Employers shall

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provide additional paid sick leave time pursuant to the requirements of accrued paid sick and safe

leave time pursuant to § 28-57-16.

     (d) Employers that provide forty (40) or more hours of paid time off or vacation to

employees that also may be used as paid sick and safe leave, consistent with this section, shall not

be required to provide additional sick leave to employees who use all their time for other purposes

and have need of paid sick and safe leave later in the year, provided that:

     (1) the The employers' leave policies make clear that additional time will not be provided;

and

     (2) The employer provides an additional amount of paid time off or paid leave to employees

that also may be used as paid sick leave time for COVID-19 purposes pursuant to § 28-57-16.

     SECTION 2. Chapter 28-57 of the General Laws entitled "Healthy and Safe Families and

Workplaces Act" is hereby amended by adding thereto the following section:

     28-57-16. Additional paid sick leave time for COVID-19 purposes.

     (a) An employer shall provide each employee of an employer with additional paid sick

leave time for COVID-19 purposes, in addition to paid sick and safe leave time accrued pursuant

to § 28-57-5, in the following amount:

     (1) For employees who normally work forty (40) or more hours in a week, eighty (80)

hours;

     (2) For employees who normally work fewer than forty (40) hours in a week, a number of

hours equal to the number of hours that such employee works, on average, over a two (2) week

period.

     (b) In the case of an employee described in subsection (a)(2) of this section, whose schedule

varies from week to week to such an extent that an employer is unable to determine with certainty

the number of hours the employee would have worked if such employee had not taken paid sick

leave time under subsection (a) of this section, the employer shall use the following in place of such

number:

     (1) Subject to subsection (a)(2) of this section, a number equal to the average number of

hours that the employee was scheduled per day over the six (6) month period ending on the date on

which the employee takes the paid sick leave time, including hours for which the employee took

leave of any type; or

     (2) If the employee did not work over such period, the reasonable expectation of the

employee at the time of hiring of the average number of hours per day that the employee would

normally be scheduled to work.

     (c) Notwithstanding any other provision in this chapter, the paid sick leave time under

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subsection (a) of this section shall be available for immediate use by the employee for the purposes

described in subsection (e) of this section, regardless of how long the employee has been employed

by an employer.

     (d) An employee may first use the paid sick leave time under subsection (a) of this section

for the purposes described in subsection (e) of this section. An employer may not require an

employee to use paid sick and safe time pursuant to § 28-57-5 or other paid leave provided by the

employer to the employee before the employee uses the paid sick leave time under subsection (a)

of this section.

     (e) The paid sick leave time required in subsection (a) of this section shall be provided by

an employer to each employee employed by the employer to the extent that the employee is unable

to work or telework due to a need for leave because:

     (1) The employee is subject to a federal, state, or local quarantine or isolation order related

to COVID–19.

     (2) The employee has been advised by a health care professional to self-quarantine due to

concerns related to COVID–19.

     (3) The employee is experiencing symptoms of COVID–19 and seeking a medical

diagnosis.

     (4) The employee is caring for an individual who is subject to an order as described in

subsection (e)(1) of this section or has been advised to self-quarantine pursuant to subsection (e)(2)

of this section.

     (5) The employee is caring for a child of such employee if the school or place of care of

the child has been closed, or the child care provider of such child is unavailable, due to COVID–

19 precautions.

     (6) The employee is experiencing any other substantially similar condition specified by the

United States Secretary of Health and Human Services in consultation with the United States

Secretary of the Treasury and the United States Secretary of Labor.

     (f) Notwithstanding any other provision in this chapter, the employee shall provide notice

to the employer of the need for paid sick leave time pursuant to this section as soon as practicable

only when the need for such paid sick leave time is foreseeable and the employer’s place of business

has not been closed.

     (g) Notwithstanding any other provision in this chapter, documentation shall not be

required for paid sick leave time under this section.

     (h) An employee shall be entitled to use paid sick leave time under this section until March

31, 2021 or any extension of eligibility for the payroll credit for emergency paid sick leave pursuant

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to § 286 of the Consolidated Appropriations Act, 2021, whichever is later.

     SECTION 3. This act shall take effect upon passage.

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EXPLANATION

BY THE LEGISLATIVE COUNCIL

OF

A N   A C T

RELATING TO LABOR AND LABOR RELATIONS -- HEALTHY AND SAFE FAMILIES

AND WORKPLACES ACT

***

     This act would require an employer to provide employees with additional paid sick leave

time, in addition to paid sick and safe leave time, for COVID-19 purposes. For employees who

work forty (40) hours or more per week an employer would be required to provide them with an

additional eighty (80) hours of paid sick leave time. For employees who work fewer than forty

(40) hours per week, an employer would be required to provide them with paid sick leave time

equal to an average of the amount of hours they work over a two (2) week period.

     This act would take effect upon passage.

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