NEW PAID SICK LEAVE LAW BECOMES EFFECTIVE JULY 1, 2018
RI DLT ISSUES FINAL REGULATIONS

The Rhode Island Department of Labor and Training (“DLT”) has issued final regulations to address the Paid Sick and Safe Leave Time Act (the “Act”). The DLT provided guidance regarding several provisions of the Act. Notably, the DLT also stated that it will not impose any penalties for violations of the Act up to January 1, 2019.

In the regulations, the DLT clarified its position regarding the hourly wage that must be paid to employees when they use sick and safe leave time. The Act requires that employees receive the “same hourly rate” when they use sick and safe leave time. The DLT provided guidance on how employers may pay the “same hourly rate” for leave time to employees who are not paid solely on an hourly basis:

  • Employees paid an hourly rate must be paid the same rate when using sick and safe time;

  • Employees who complete different tasks for the same employer and who receive different rates of pay from the employer may be paid as follows:
  • -The wages the employee would have earned if they did not use sick and safe leave time; or

    - A blended rate taken from the weighted average of pay after the previous pay period, month, quarter, year or other period of time that the employer customarily uses to establish blended rates.

    - The employer must elect a manner of determining how employees who are paid different hourly rates by the employer are paid sick and safe leave time and use that payment method for the entire benefit year.

  • Employees exempt from overtime are assumed to have worked 40 hours per week, unless they customarily work less than 40 hours per week, in which case the employer may use the employees’ normal work week to track accrual of sick and safe time.

  • Employees paid on a piece work or fee-for-service basis must be paid the same wages that they would have received if they did not use sick and safe leave time. For piece work and fee-for-service work, the “same hourly rate” cannot be less than the state’s minimum wage of $10.10/hour.

  • For employees paid on commission, the “same hourly rate” means the greater of the employees’ base wage or the state’s minimum wage.

  • For tipped employees who typically receive the “tipped minimum wage," the “same hourly wage” is the state’s minimum wage of $10.10/hour.

The DLT also identified compensation that shall not be included in the calculation of the “same hourly wage:"

  • Sums paid as commissions, draws, bonuses or other incentive pay based on sales or production;

  • Sums paid to a bona fide plan for providing life, old age, retirement, accident or health insurance benefits and any other employee benefit plans;

  • Overtime, holiday pay or other premium rates.

The DLT also clarified its definition of a “seasonal employee." The DLT now defines a “seasonal employee” as an employee who is hired for a position for which the customary annual employment is six months or less. Seasonal employees accrue paid time off upon hire but may only use sick and safe leave time after 150 days from their date of hire.

The DLT addressed how the Act will relate to employers’ existing paid time off policies. If an employer provides 24 hours of paid time off in 2018; 32 hours of paid time off in 2019; and 40 hours in 2020 and thereafter, then the employer is exempt from providing sick and safe leave time pursuant to the DLT’s accrual method (1 hour per 35 hours worked) or any other accrual schedule permitted by the DLT and allowing employees to carry over unused sick and safe leave time from year to year. If the employer front loads the time at the beginning of the benefit year, then the employer is exempt from tracking accrual, its employees may not carry over sick and safe leave time, and the employer has no obligation to pay for unused time.

The DLT further provided guidance on the application of the Act to employees who work in multiple states. The Act applies to all employees who work primarily in Rhode Island. The DLT considers an employee to have worked primarily in Rhode Island if they worked more time in Rhode Island than any other state. If an employee works primarily in Rhode Island, then all hours worked count towards accrual of sick and safe leave time.

Employers may impose a 90-day waiting period to use sick and safe leave time so long as new employees are notified of this requirement in writing upon hire. Employers may not impose a waiting period to accrue sick and safe leave time.

Employees accrue sick and safe leave time while using other company paid time off, including holiday pay, personal time, sick time and vacation time.

Employers may require reasonable documentation when employees miss more than 3 consecutive days from work for sick and safe leave time. Employers may only request reasonable documentation if they have a written policy or handbook section that requires employees to provide reasonable documentation. Employees may provide the employer reasonable documentation within a reasonable time from the employer’s request.

Employers should also note that the DLT allows employees to take sick and safe leave to care for a family member or a “member of an employee’s household.” This includes a person who resides at the same physical address as the employee or a person claimed as a dependent on the employee’s federal tax return. By this definition, an employee could take sick and safe time to care for a roommate who is ill or the victim of stalking, domestic violence or a crime.

Pannone Lopes Devereaux and O’Gara employment lawyers are available to answer any questions and assist your organization to be in compliance with the new law. Please contact our attorneys William E. OĠGara and Matthew C. Reeber at 401-824-5100 or email wogara@pldolaw.com or mreeber@pldolaw.com.


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