2023 -- H 5447

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LC001185

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     STATE OF RHODE ISLAND

IN GENERAL ASSEMBLY

JANUARY SESSION, A.D. 2023

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A N   A C T

RELATING TO LABOR AND LABOR RELATIONS -- TEMPORARY DISABILITY

INSURANCE -- GENERAL PROVISIONS

     Introduced By: Representatives Diaz, Ajello, Edwards, Tanzi, Kennedy, Ackerman,
Slater, Shallcross Smith, Morales, and Caldwell

     Date Introduced: February 08, 2023

     Referred To: House Labor

     It is enacted by the General Assembly as follows:

     SECTION 1. Sections 28-39-2 and 28-39-26 of the General Laws in Chapter 28-39 entitled

"Temporary Disability Insurance — General Provisions" are hereby amended to read as follows:

     28-39-2. Definitions.

     The following words and phrases, as used in chapters 39 — 41 39 through 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 that 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 that 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 39 through 41 of

this title, to an individual as compensation for his or her unemployment caused by sickness or

reasons allowed under this title.

     (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 39 through 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 or reasons allowed under this title.

     (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 16.1 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 39 through 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 39 through 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

42 through 44 of this title.

     (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 39 through 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

§ 28-39-7.

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     (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 39 through 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 39 through 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, that 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 39 through 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.

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

     28-39-26. Pecuniary penalty for failure to make contributions or reports.

     An employer or self-employed individual who elects to be covered by this chapter who

fails to file any report required under chapters 39 — 41 39 through 41 of this title, or who or that

fails or refuses to pay any contributions required under those chapters in the manner and at the

times required by the laws and regulations or as the director may, in accordance with those laws

and regulations, prescribe, shall pay a penalty of ten dollars ($10.00) for each failure or refusal to

file, and where any contribution is due, shall pay an additional penalty of ten percent (10%) of the

amount due. These penalties shall be paid into the temporary disability insurance reserve fund, and

shall be in addition to contributions and interest required to be paid as provided in chapters 39 —

41 39 through 41; provided, that if any employer or self-employed individual who elects to be

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covered by this chapter fails to pay the penalty, when assessed, it shall be collected by civil action

as provided in § 28-40-12.

     SECTION 2. Chapter 28-39 of the General Laws entitled "Temporary Disability Insurance

— General Provisions" is hereby amended by adding thereto the following section:

     28-39-3.4. Non-covered Rhode Island residents eligible by election.

     (a) Notwithstanding any inconsistent provisions of chapters 39 through 41 of this title, any

self-employed Rhode Island resident may become subject to those chapters, by filing an enrollment

form with the department in accordance with the rules and regulations established by the

department, for enrollment. Notwithstanding any other provisions of chapters 39 through 41 of this

title to the contrary, self-employed Rhode Island residents, that do not have otherwise qualifying

wages from prior employment within the base period, will not be eligible for benefits under those

chapters, until the completion of twelve (12) months of contributions has been made for

participation in the program as described in § 28-40-1. Except as otherwise provided in this title,

all other provisions of these chapters shall continue to be applicable in connection with the

employment.

     (b) Any self-employed Rhode Island resident who fails to meet the quarterly reporting

requirements or make the required quarterly contributions in a timely manner, shall be ineligible to

receive benefits under chapters 39 through 41 of this title until such time as that person has satisfied

any outstanding payments in this regard.

     SECTION 3. Sections 28-40-1 and 28-40-9 of the General Laws in Chapter 28-40 entitled

"Temporary Disability Insurance — Contributions" are hereby amended to read as follows:

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

     (a) The For each calendar year prior to 2024, 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 39 through 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 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) For calendar year 2024 and subsequent years, the taxable wage base shall not exceed

the Social Security contribution and benefit base, as determined pursuant to 42 U.S.C. 430. That

taxable wage base shall be effective for the calendar year beginning on the next January 1.

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     (c) Any self-employed Rhode Island resident who fails to meet the quarterly reporting

requirements or make the required quarterly contributions in a timely manner shall be ineligible to

receive benefits under chapters 39 through 41 of this title, until such time as that person has satisfied

any outstanding payments owed.

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

which the employer becomes subject to chapters 39 — 41 39 through 41 of this title, an amount

equal to the fund cost rate times the wages paid by the employer to the employee 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-month (12)

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

wages paid by employers during the twelve-month (12) 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-month (6) period ending on that September 30, that difference shall be

added to the total disbursements for the twelve-month (12) 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%).

     28-40-9. Interest on delinquent payments.

     Employers or self-employed Rhode Island residents who fail to make payment of

contributions, as required by chapters 39 — 41 39 through 41 of this title, or by the prescribed rules

and regulations, shall be additionally liable to the temporary disability insurance reserve fund for

interest on those delinquent payments at the rate of one and one-half percent (11/2%) per month

from the date the payment became due until paid.

     SECTION 4. Sections 28-41-2, 28-41-5 and 28-41-35 of the General Laws in Chapter 28-

41 entitled "Temporary Disability Insurance — Benefits" are hereby amended to read as follows:

     28-41-2. Wages included for benefit purposes.

     (a) Notwithstanding any provisions of chapters 39 — 41 39 through 41 of this title to the

contrary, “wages” as used in the phrase “wages for employment from employers” means, with

reference to the benefits provisions of chapters 39 — 41 39 through 41 of this title, only those

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wages that are paid subsequent to the date upon which the employing unit, by whom those wages

were paid, has satisfied the conditions of § 28-39-2(12) with respect to becoming an employer

subject to those chapters. No individual shall be denied benefits under chapters 39 — 41 39 through

41 of this title because his or her employer continued to pay to that individual his or her regular

wages, or parts of them, while he or she was sick 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 that employer, shall not be deemed to be wages for the purpose of being used

as a basis for paying benefits under this chapter.

     (b) With respect to self-employed Rhode Island residents with "wages" earned through

their self-employment, those wages shall be considered wages for determining benefits under

chapters 39 through 41 of this title, if the individual has applied for coverage under the temporary

disability insurance program, in accordance with the provisions of § 28-39-3.4.

     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 reasons allowed under this

chapter, when that week occurs within a benefit year, shall be, computed as follows: for benefit

years beginning on or after October 7, 1990, 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 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) For claimants whose high quarter average hourly wage is less than or equal to the

minimum wage, the benefit rate payable under this chapter to any eligible individual with respect

to any week of their unemployment due to reasons allowed under this chapter, when that week

occurs within the benefit year, shall be, for benefit years beginning on or after January 1, 2024,

ninety percent (90%) of that individual's average weekly wage.

     (3) For claimants whose high quarter average hourly wage is less than or equal to two (2)

times the minimum wage, the benefit rate payable under this chapter to any eligible individual with

respect to any week of their unemployment due to reasons allowed under this chapter, when that

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

2024, seventy-five percent (75%) of their average weekly wage.

     (4) 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)(5) 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 reasons allowed under this chapter 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 and in no instance shall the individual's weekly

benefit amount including both the benefit rate and dependent's allowance exceed that individual's

average weekly wage in the last period. 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.

     (d) Partial unemployment due to sickness reasons allowed under this chapter. For weeks

beginning on or after January 1, 2006, an individual partially unemployed due to sickness reasons

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allowed under this chapter 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 reasons allowed under this chapter

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

reasons allowed under this chapter 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.

     28-41-35. 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 § 28-41-36(c); or

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

has a serious health condition, subject to a waiting period in accordance with the provisions of §

28-41-12 [repealed]. Employees may use accrued sick time during the 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

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

file a written intent with his or her 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 39 through 41 of this title.

     (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

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with chapters 39 — 41 39 through 41 of this title. 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, 2022, temporary caregiver benefits shall be limited to a maximum

of five (5) weeks in a benefit year;

     (3) Beginning January 1, 2023, temporary caregiver benefits shall be limited to a maximum

of six (6) weeks in a benefit year.

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

disability benefits that together exceed thirty (30) times his or her weekly benefit rate in any benefit

year the total amount of benefits payable in accordance with the provisions outlined in § 28-41-7.

     (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 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, Pub. L. No.

103-3 and/or the Rhode Island parental and family medical leave act, § 28-48-1 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 the federal Family and

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Medical Leave Act (FMLA), Pub. L. No. 103-3 and the Rhode Island parental and family medical

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, Pub. L. No. 103-3 and/or the Rhode

Island parental and family medical leave act, § 28-48-1 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 5. This act shall take effect on January 1, 2024.

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EXPLANATION

BY THE LEGISLATIVE COUNCIL

OF

A N   A C T

RELATING TO LABOR AND LABOR RELATIONS -- TEMPORARY DISABILITY

INSURANCE -- GENERAL PROVISIONS

***

     This act would increase the taxable wage base upon which employees make contributions

to the TDI and TCI funds, increase individual benefit rates for lower wage individuals, and create

an opt- in option for self-employed workers.

     This act would take effect on January 1, 2024.

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