2017 -- S 0678

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LC000825

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     STATE OF RHODE ISLAND

IN GENERAL ASSEMBLY

JANUARY SESSION, A.D. 2017

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A N   A C T

RELATING TO LABOR AND LABOR RELATIONS -- TEMPORARY DISABILITY

INSURANCE

     Introduced By: Senators Goldin, Miller, Goodwin, Ruggerio, and Calkin

     Date Introduced: March 29, 2017

     Referred To: Senate Labor

     It is enacted by the General Assembly as follows:

     SECTION 1. Section 28-39-2 of the General Laws in Chapter 28-39 entitled "Temporary

Disability Insurance - General Provisions" is hereby amended to read as follows:

     28-39-2. Definitions.

     The following words and phrases, as used in chapters 39 -- 41 of this title, have the

following meanings unless the context clearly requires otherwise:

     (1) "Average weekly wage" means the amount determined by dividing the individual's

total wages earned for services performed in employment within his or her base period by the

number of that individual's credit weeks within the base period;

     (2) "Base period" with respect to an individual's benefit year when the benefit year begins

on or after October 7, 1990, means the first four (4) of the most recently completed five (5)

calendar quarters immediately preceding the first day of an individual's benefit year; provided,

that for any individual's benefit year when the benefit year begins on or after October 4, 1992,

and for any individual deemed monetarily ineligible for benefits under the "base period" as

defined in this subdivision, the department shall make a re-determination of entitlement based

upon an alternate base period which consists of the last four (4) completed calendar quarters

immediately preceding the first day of the claimant's benefit year. Notwithstanding anything

contained to the contrary in this subdivision, the base period shall not include any calendar

quarter previously used to establish a valid claim for benefits; provided, however, that the "base

period" with respect to members of the United States military service, the Rhode Island National

Guard, or a United States military reserve force, and who served in a United States declared

combat operation during their military service, who file a claim for benefits following their

release from their state or federal active military service and who are deemed to be monetarily

ineligible for benefits under this section, shall mean the first four (4) of the most recently

completed five (5) calendar quarters immediately preceding the first day the individual was called

into that state or federal active military service; provided, that for any individual deemed

monetarily ineligible for benefits under the "base period" as defined in this section, the

department shall make a re-determination of entitlement based upon an alternative base period

which consists of the last four (4) completed calendar quarters immediately preceding the first

day the claimant was called into that state or federal active military service. Notwithstanding any

provision of this section of the general or public laws to the contrary, the base period shall not

include any calendar quarter previously used to establish a valid claim for benefits;

     (3) "Benefit" means the money payable, as provided in chapters 39 -- 41 of this title, to

an individual as compensation for his or her unemployment caused by sickness;

     (4) "Benefit credits" means the total amount of money payable to an individual as

benefits, as provided in § 28-41-7;

     (5) "Benefit rate" means the money payable to an individual as compensation, as

provided in chapters 39 -- 41 of this title, for his or her wage losses with respect to any week

during which his or her unemployment is caused by sickness;

     (6) "Benefit year" with respect to any individual who does not already have a benefit year

in effect, and who files a valid claim for benefits as of November 16, 1958 or any later date,

means fifty-two (52) consecutive calendar weeks, the first of which shall be the week containing

the day as of which he or she first files that valid claim in accordance with regulations adopted as

subsequently prescribed; provided, that for any benefit year beginning on or after October 7,

1990, the benefit year shall be fifty-three (53) consecutive calendar weeks if the subsequent filing

of a new valid claim immediately following the end of a previous benefit year would result in the

overlapping of any quarter of the base period of the prior new claim. In no event shall a new

benefit year begin prior to the Sunday next following the end of the old benefit year;

     (i) For benefit years that begin on or after July 1, 2012, an individual's benefit year will

begin on the Sunday of the calendar week in which an individual first became unemployed due to

sickness and for which the individual has filed a valid claim for benefits;

     (7) "Board" means the board of review as created under chapter 19 of title 42;

     (8) "Calendar quarter" has the same definition as contained in chapter 42 of this title;

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     (9) "Credit week" means any week within an individual's base period in which that

individual earns wages amounting to at least twenty (20) times the minimum hourly wage as

defined in chapter 12 of this title, for performing services in employment for one or more

employers subject to chapters 39 -- 41 of this title;

     (10) "Director" means the director of the department of labor and training;

     (11) "Employee" means any person who is or has been employed by an employer subject

to chapters 39 -- 41 of this title and in employment subject to those chapters;

     (12) "Employer" means any employing unit that is an employer under chapters 42 -- 44

of this title including the state and all political subdivisions and instrumentalities of one or more

political subdivisions;

     (13) "Employing unit" has the same definition as contained in chapter 42 of this title and

includes any governmental entity that elects to become subject to the provisions of chapters 39 --

41 of this title, in accordance with the provisions of §§ 28-39-3.1 and 28-39-3.2;

     (14) "Employment" has the same definition as contained in chapter 42 of this title;

     (15) "Employment office" has the same definition as contained in chapter 42 of this title;

     (16) "Fund" means the Rhode Island temporary disability insurance fund established by

this chapter;

     (17) "Partial unemployment due to sickness" For weeks beginning on or after January 1,

2006 an individual shall be deemed partially unemployed due to sickness in any week of less than

full-time work if he or she fails to earn in wages for services for that week an amount equal to the

weekly benefit rate for total unemployment due to sickness to which he or she would be entitled

if totally unemployed due to sickness and eligible.

     (i) For the purposes of this subdivision and subdivision (22) of this section, "Wages"

includes only that part of remuneration for any work, which is in excess of one-fifth (1/5) of the

weekly benefit rate for total unemployment, rounded to the next lower multiple of one dollar

($1.00), to which the individual would be entitled if totally unemployed and eligible in any one

week, and "services" includes only that part of any work for which remuneration in excess of

one-fifth (1/5) of the weekly benefit rate for total unemployment, rounded to the next lower

multiple of one dollar ($1.00), to which the individual would be entitled if totally unemployed

and eligible in any one week is payable; provided, that nothing contained in this paragraph shall

permit any individual to whom remuneration is payable for any work performed in any week in

an amount equal to, or greater than, his or her weekly benefit rate to receive benefits under this

subdivision for that week.

     (18) "Reserve fund" means the temporary disability insurance reserve fund established by

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§ 28-39-7;

     (19) "Services" means all endeavors undertaken by an individual that are paid for by

another or with respect to which the individual performing the services expects to receive wages

or profits;

     (20) "Sickness". An individual shall be deemed to be sick in any week in which, because

of his or her physical or mental condition, including pregnancy, he or she is unemployed and

unable to perform his or her regular or customary work or services;

     (21) (i) "Taxes" means the money payments required by chapters 39 -- 41 of this title, to

be made to the temporary disability insurance fund or to the temporary disability insurance

reserve fund.

     (ii) Wherever and whenever in chapters 39 -- 41 of this title, the words "contribution"

and/or "contributions" appear, those words shall be construed to mean the "taxes," as defined in

this subdivision, which are the money payments required by those chapters to be made to the

temporary disability insurance fund or to the temporary disability insurance reserve fund;

     (22) "Wages" has the same definition as contained in chapter 42 of this title; provided,

that no individual shall be denied benefits under chapters 39 -- 41 of this title because his or her

employer continues to pay to that individual his or her regular wages, or parts of them, while he

or she is unemployed due to sickness and unable to perform his or her regular or customary work

or services. The amount of any payments, whether or not under a plan or system, made to or on

behalf of an employee by his or her employer after the expiration of six (6) calendar months

following the last calendar month in which the employee performed actual bona fide personal

services for his or her employer, shall not be deemed to be wages either for the purpose of paying

contributions thereon under chapter 40 of this title, or for the purpose of being used as a basis for

paying benefits under chapter 41 of this title; and

     (23) "Week" has the same definition as contained in chapter 42 of this title.

     SECTION 2. Section 28-40-1 of the General Laws in Chapter 28-40 entitled "Temporary

Disability Insurance - Contributions" is hereby amended to read as follows:

     28-40-1. Amount of employee contributions -- Wages on which based.

     (a) The taxable wage base under this chapter for each calendar year shall be equal to the

greater of thirty-eight thousand dollars ($38,000) or the annual earnings needed by an individual

to qualify for the maximum weekly benefit amount and the maximum duration under chapters 39

-- 41 of this title. That taxable wage base shall be computed as follows: Every September 30, the

maximum weekly benefit amount in effect as of that date shall be multiplied by thirty (30) and

the resultant product shall be divided by thirty-six hundredths (.36). If the result thus obtained is

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not an even multiple of one hundred dollars ($100), it shall be rounded upward to the next higher

even multiple of one hundred dollars ($100). That taxable wage base shall be effective for the

calendar year beginning on the next January 1.

     (b) Each employee shall contribute with respect to employment after the date upon which

the employer becomes subject to chapters 39 -- 41 of this title, an amount equal to the fund cost

rate times the wages paid by the employer to the employee per pay period, less an amount equal

to eight percent (8%) of the average weekly wage up to the taxable wage base as defined and

computed in subsection (a) of this section. The employee contribution rate for the following

calendar year shall be determined by computing the fund cost rate on or before November 15 of

each year as follows:

     (1) The total amount of disbursements made from the fund for the twelve (12) month

period ending on the immediately preceding September 30 shall be divided by the total taxable

wages paid by employers during the twelve (12) month period ending on the immediately

preceding June 30. The ratio thus obtained shall be multiplied by one hundred (100) and the

resultant product if not an exact multiple of one-tenth of one percent (0.1%) shall be rounded

down to the next lowest multiple of one-tenth of one percent (0.1%);

     (2) If the fund balance as of the preceding September 30 is less than the total

disbursements from the fund for the six (6) month period ending on that September 30, that

difference shall be added to the total disbursements for the twelve (12) month period ending

September 30 for the purpose of computing the fund cost rate, and if the resulting fund cost rate is

not an exact multiple of one-tenth of one percent (0.1%) it shall be rounded to the nearest

multiple of one-tenth of one percent (0.1%).

     SECTION 3. Sections 28-41-5, 28-41-7, 28-41-34 and 28-41-35 of the General Laws in

Chapter 28-41 entitled "Temporary Disability Insurance - Benefits" are hereby amended to read

as follows:

     28-41-5. Weekly benefit rate -- Dependents' allowances.

     (a) (1) Benefit rate. The benefit rate payable under this chapter to any eligible individual

with respect to any week of his or her unemployment due to sickness, when that week occurs

within a benefit year, shall be, for benefit years beginning on or after October 7, 1990 but before

January 1, 2018, four and sixty-two hundredths percent (4.62%) of the wages paid to the

individual in that calendar quarter of the base period in which the individual's wages were

highest; provided, however, that the benefit rate shall not exceed eighty-five percent (85%) of the

average weekly wage paid to individuals covered by chapters 42 -- 44 of this title for the

preceding calendar year ending December 31. The benefit rate payable under this chapter to any

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eligible individual with respect to any week of their unemployment due to sickness, when that

week occurs within a benefit year, shall be, for benefit years beginning on or after January 1,

2017, seven and sixty-nine hundredths percent (7.69%) of the wages paid to the individual in that

calendar quarter of the base period in which the individual's wages were highest; provided,

however, that the benefit rate shall not exceed one hundred percent (100%) of the average weekly

wage paid to individuals covered by chapters 42 through 44 of this title for the preceding calendar

year ending December 31. If the maximum weekly benefit rate is not an exact multiple of one

dollar ($1.00) then the rate shall be raised to the next higher multiple of one dollar ($1.00). Those

weekly benefit rates shall be effective throughout the benefit years beginning on or after July 1 of

the year prior to July of the succeeding calendar year.

     (2) The benefit rate of any individual, if not an exact multiple of one dollar ($1.00), shall

be raised to the next higher multiple of one dollar ($1.00).

     (b) Dependents' allowances. An individual to whom benefits for unemployment due to

sickness are payable under this chapter with respect to any week, shall, in addition to those

benefits, be paid with respect to each week a dependent's allowance of ten dollars ($10.00) or

seven percent (7%), of the individual's benefit rate, payable under subsection (a) of this section,

whichever is greater for each of that individual's children, including adopted and stepchildren or

that individual's court appointed wards who, at the beginning of the individual's benefit year, is

under eighteen (18) years of age and who is at that time in fact dependent on that individual. A

dependent's allowance shall also be paid to that individual for any child, including an adopted

child or a stepchild or that individual's court appointed ward, eighteen (18) years of age or over,

incapable of earning any wages because of mental or physical incapacity, and who is dependent

on that individual in fact at the beginning of the individual's benefit year, including individuals

who have been appointed the legal guardian of that child by the appropriate court. However, in no

instance shall the number of dependents for which an individual may receive dependents'

allowances exceed five (5) in total. The weekly total of dependents' allowances payable to any

individual, if not an exact multiple of one dollar ($1.00), shall be rounded to the next lower

multiple of one dollar ($1.00). The number of an individual's dependents, and the fact of their

dependency, shall be determined as of the beginning of that individual's benefit year; provided,

that only one individual shall be entitled to a dependent's allowance for the same dependent with

respect to any week. Each individual who claims a dependent's allowance shall establish his or

her claim to it to the satisfaction of the director under procedures established by the director.

     (c) Any individual's benefit rate and/or dependents' allowance in effect for a benefit year

shall continue in effect until the end of that benefit year.

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     (d) Partial unemployment due to sickness. For weeks beginning on or after January 1,

2006, an individual partially unemployed due to sickness and otherwise eligible in any week shall

be paid sufficient benefits with respect to that week, so that his or her wages, rounded to the next

higher multiple of one dollar ($1.00), and his or her benefits combined will equal in amount the

weekly benefit rate to which he or she would be entitled if totally unemployed due to sickness in

that week; provided that an individual must have been totally unemployed due to sickness for at

least seven (7) consecutive days prior to claiming partial benefits under this provision; provided,

that this provision shall not apply if the individual is entitled to lag day benefits pursuant to § 28-

41-9; provided, further, that nothing contained herein shall permit any individual to whom

remuneration is payable for any work performed in any week in an amount equal to or greater

than his or her weekly benefit rate to receive benefits or waiting period credit for that week.

     28-41-7. Total amount of benefits.

     The total amount of benefits payable during a benefit year to any eligible individual shall

be an amount equal to thirty-six percent (36%) of the individual's total wages for employment by

employers subject to chapters 39 -- 41 of this title during his or her base period; provided, that no

individual shall be paid total benefits in any benefit year which exceed thirty (30) thirty-two (32)

times his or her weekly benefit rate; provided further, that dependents' allowances to which he or

she might be entitled under § 28-41-5 shall be in addition to these total benefits. If the total

amount of benefits is not an exact multiple of one dollar ($1.00), then it shall be raised to the next

higher multiple of one dollar ($1.00).

     28-41-34. Temporary caregiver insurance.

     The purpose of this chapter is to establish, within the state temporary disability insurance

program, a temporary caregiver insurance program to provide wage replacement benefits in

accordance with the provisions of this chapter, to workers who take time off work to care for a

seriously ill child, spouse, domestic partner, sibling, parent, parent-in-law, grandparent,

grandchild, or to bond with a new child.

     Definitions as used in this chapter:

     (1) "Child" means a biological, adopted, or foster son or daughter, a stepson or

stepdaughter, a legal ward, a son or daughter of a domestic partner, or a son or daughter of an

employee who stands in loco parentis to that child.

     (2) "Newborn child" means a child under one year of age.

     (3) "Adopted child" means a child adopted by, or placed for adoption with, the employee.

     (4) "Bonding or bond" means to develop a psychological and emotional attachment

between a child and his or her parent(s) or persons who stand in loco parentis. This shall involve

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being in one another's physical presence.

     (5) "Parent" means a biological, foster, or adoptive parent, a stepparent, a legal guardian,

or other person who stands in loco parentis to the employee or the employee's spouse or domestic

partner when he/she was a child.

     (6) "Domestic partner" means a party to a civil union as defined by chapter 15-3.1.

     (7) "Spouse" means a party in a common law marriage, a party in a marriage conducted

and recognized by another state or country, or in a marriage as defined by chapter 15-3.

     (8) "Grandparent" means a parent of the employee's parent.

     (9) "Parent-in-law" means the parent of the employee's spouse or domestic partner.

     (10) "Employee" means any person who is or has been employed by an employer subject

to chapters 39 through 41 of this title and in employment subject to those chapters.

     (11) "Serious health condition" means any illness, injury, impairment, or physical or

mental condition that involves inpatient care in a hospital, hospice, residential health care facility,

or continued treatment or continuing supervision by a licensed health care provider.

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

     (13) "Persons who stand in loco parentis" means those with day-to-day responsibilities to

care for and financially support a child or, in the case of an employee, who had such

responsibility for the employee when the employee was a child. A biological or legal relationship

shall not be required.

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

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

     (15) "Grandchild" means the child of the employee's child.

     28-41-35. Benefits.

     (a) Subject to the conditions set forth in this chapter, an employee shall be eligible for

temporary caregiver benefits for any week in which he or she is unable to perform his or her

regular and customary work because he or she is:

     (1) Bonding with a newborn child or a child newly placed for adoption or foster care with

the employee or domestic partner in accordance with the provisions of subdivision 28-41-

36(c)(1); or

     (2) Caring for a child, a parent, parent-in-law, grandparent, spouse, or domestic partner,

sibling, or grandchild, who has a serious health condition, subject to a waiting period in

accordance with the provisions of § 28-41-12. Employees may use accrued sick time during

eligibility waiting period in accordance with the policy of the individual's employer.

     (b) Temporary caregiver benefits shall be available only to the employee exercising his or

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her right to leave while covered by the temporary caregiver insurance program. An employee

shall file a written intent with their employer, in accordance with rules and regulations

promulgated by the department, with a minimum of thirty (30) days notice prior to

commencement of the family leave. Failure by the employee to provide the written intent may

result in delay or reduction in the claimant's benefits, except in the event the time of the leave is

unforeseeable or the time of the leave changes for unforeseeable circumstances.

     (c) Employees cannot file for both temporary caregiver benefits and temporary disability

benefits for the same purpose, concurrently, in accordance with all provisions of this act and

chapters 39-41.

     (d) Temporary caregiver benefits may be available to any individual exercising his or her

right to leave while covered by the temporary caregiver insurance program, commencing on or

after January 1, 2014, which shall not exceed the individual's maximum benefits in accordance

with chapters 39-41. The benefits for the temporary caregiver program shall be payable with

respect to the first day of leave taken after the waiting period and each subsequent day of leave

during that period of family temporary disability leave. Benefits shall be in accordance with the

following:

     (1) Beginning January 1, 2014 temporary caregiver benefits shall be limited to a

maximum of four (4) weeks in a benefit year;

     (2) Beginning January, 1, 2018, temporary caregiver benefits shall be limited to a

maximum of six (6) weeks in a benefit year;

     (3) Beginning January 1, 2019, temporary caregiver benefits shall be limited to a

maximum of eight (8) weeks in a benefit year.

     (e) In addition, no individual shall be paid temporary caregiver benefits and temporary

disability benefits which together exceed thirty (30) thirty-two (32) times his or her weekly

benefit rate in any benefit year.

     (f) Any employee who exercises his or her right to leave covered by temporary caregiver

insurance under this chapter shall, upon the expiration of that leave, be entitled to be restored by

the employer to the position held by the employee when the leave commenced, or to a position

with equivalent seniority, status, employment benefits, pay, and other terms and conditions of

employment including fringe benefits and service credits that the employee had been entitled to at

the commencement of leave.

     (g) During any caregiver leave taken pursuant to this chapter, the employer shall maintain

any existing health benefits of the employee in force for the duration of the leave as if the

employee had continued in employment continuously from the date he or she commenced the

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leave until the date the caregiver benefits terminate; provided, however, that the employee shall

continue to pay any employee shares of the cost of health benefits as required prior to the

commencement of the caregiver benefits.

     (h) No individual shall be entitled to waiting period credit or temporary caregiver benefits

under this section for any week beginning prior to January 1, 2014. An employer may require an

employee who is entitled to leave under the federal Family and Medical Leave Act, PL 103-3

and/or the Rhode Island Parental and Family Medical Leave Act, 28-41 et seq., who exercises his

or her right to benefits under the temporary caregiver insurance program under this chapter, to

take any temporary caregiver benefits received, concurrently, with any leave taken pursuant to the

federal Family and Medical Leave Act and/or the Rhode Island Parental and Family Medical

Leave Act.

     (i) Temporary caregiver benefits shall be in accordance with federal Family and Medical

Leave Act (FMLA) P.L. 103-3 and Rhode Island Family Parental and Family Leave Act in

accordance with § 28-48-1, et seq. An employer may require an employee who is entitled to leave

under the federal Family and Medical Leave Act, PL 103-3 and/or the Rhode Island Parental and

Family Medical Leave Act, 28-41 et seq., who exercises his or her right to benefits under the

temporary caregiver insurance program under this chapter, to take any temporary caregiver

benefits received, concurrently, with any leave taken pursuant to the federal Family and Medical

Leave Act and/or the Rhode Island Parental and Family Medical Leave Act.

     SECTION 4. Sections 28-39-3, 28-39-3.2 and 28-39-32 of the General Laws in Chapter

28-39 entitled "Temporary Disability Insurance - General Provisions" are hereby repealed.

     28-39-3. Exemption of governmental entities.

     Governmental entities as defined in § 28-42-3(22) shall not be deemed to be employing

units subject to chapters 39 -- 41 of this title and services performed in the employ of those

governmental entities shall not be deemed to be employment subject to those chapters; provided,

that certain governmental entities may elect to become subject to chapters 39 -- 41 of this title in

accordance with §§ 28-39-3.1 and 28-39-3.2. Unionized state employees may elect to become

subject to chapters 39 -- 41 of this title through the collective bargaining process.

     28-39-3.2. Manner of election.

     The election shall be made by submitting to the director a duly certified copy of a

resolution or act of the legislative body of the political subdivision or subdivisions passed in

accordance with their ordinances. Upon receipt of the certified copy of the resolution or act, the

director shall specify the date as of which the governmental entity shall become subject to these

provisions. Notwithstanding any provisions of chapters 39 -- 41 of this title to the contrary, any

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political subdivision or subdivisions in this state may elect in accordance with these provisions

that services performed by individuals for its highway department or department of public works,

including full-time highway surveyors, whether or not those surveyors are elected, shall be

deemed to be in employment.

     28-39-32. Limitation of prosecutions.

     No person shall be convicted of any offense for any violation of chapters 39 -- 41 of this

title or any rule or regulation of the department unless the complaint or warrant for that violation

has been issued within five (5) years from the time of the commission of the offense.

     SECTION 5. 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 -- TEMPORARY DISABILITY

INSURANCE

***

     This act would expand temporary disability insurance benefits to state and municipal

employees, increase TDI benefits, change the calculation of the taxable wage base, modify the

contribution formula and increase the maximum amount of benefit weeks from thirty (30) to

thirty-two (32). It also would increase from four (4) to six (6) weeks the length of time employees

can receive temporary caregiver insurance benefits and would make employees who care for their

siblings or grandchildren eligible for benefits.

     This act would take effect upon passage.

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