Chapter 213

2013 -- H 5889 SUBSTITUTE A AS AMENDED

Enacted 07/11/13

 

A N A C T

RELATING TO LABOR AND LABOR RELATIONS -- TEMPORARY DISABILITY

INSURANCE

          

     Introduced By: Representatives E Coderre, Ajello, Williams, Ferri, and Blazejewski

     Date Introduced: March 19, 2013

 

It is enacted by the General Assembly as follows:

 

     SECTION 1. Chapter 28-41 of the General Laws entitled "Temporary Disability

Insurance - Benefits" are hereby amended by adding thereto the following sections:

 

     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, parent,

parent-in-law, grandparent, 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

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.

 

     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,

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

of section 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

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

chapter 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;

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

disability benefits which together exceed thirty (30) 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

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 section 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.

 

     28-41-36. Certification of eligibility for leave. (a) An individual who exercises his or

her right to leave covered by the temporary caregiver insurance program under this chapter shall

file a certificate form with all information required by the department.

     (b) For leave for reason of caring for a seriously ill family member, an employee shall

file a certificate with the department that shall contain:

     (1) A diagnosis and diagnostic code prescribed in the international classification of

diseases, or where no diagnosis has yet been obtained, a detailed statement of symptoms;

     (2) The date if known, on which the condition commenced;

     (3) The probable duration of the condition;

     (4) An estimate of the amount of time that the licensed qualified health care provider

believes the employee is needed to care for the family member;

     (5) A statement that the serious health condition warrants the participation of the

employee to provide care for his or her family member. "Warrants the participation of the

employee" includes, but is not limited to, providing psychological comfort, arranging third-party

care for the family member as well as directly providing, or participating in the medical and

physical care of the patient; and

     (6) A certificate filed to establish medical eligibility of the serious health condition of the

employee's family member shall be made by the family member's treating licensed qualified

heath care provider.

     (7) In the case of a parent, or persons who are in loco parentis caring for the serious

health condition of a foster care child, the employee shall submit all required information in

accordance with this section, with a written request to the department of children, youth and

families for the release of medical information by the child's treating licensed qualified health

care provider. The department of children, youth and families shall transmit the requested

medical information, pending all properly submitted forms, to the department of labor and

training, within ten (10) business days of request. In the absence of the requested transmitted

medical information by the department of children, youth and families within ten (10) business

days, the employee may request the licensed qualified healthcare provider to directly transmit the

medical eligibility of the serious health condition to the department of labor and training.

Payment shall not be delayed, in accordance with all provisions of chapter 39-41, as a result of

delays by the department of children, youth and families in transmitting medical information.

     (c) The department shall develop a certificate of eligibility form for leave in the case of

bonding as defined herein, for the birth of a newborn child of the employee or the employee's

domestic partner, or the placement of a child with the employee in connection with the adoption

or foster care of the child by the employee or domestic partner, or persons in loco parentis.

Information shall include the following:

     (1) A birth certificate, certificate of adoption, or other competent evidence showing the

employee or the employee's domestic partner, or persons in loco parentis is the parent of the child

within twelve (12) months of the child's adoption, birth or placement for adoption or foster care

with the employee.

 

     28-41-37. Determination of a Claim.-- (a) In accordance with section 28-41-16, upon

the filing of a claim, the director shall promptly examine the claim and on the basis of facts found

by the director and records maintained by the department, the claim shall be determined to be

valid or invalid, if the claim is determined to be valid, the director shall promptly notify the

claimant as to the week with respect to which benefits shall commence, the weekly benefit

amount payable, and the maximum duration of those benefits. If the claim is determined to be

invalid, the director shall likewise notify the claimant and any other interested parties of that

determination and the reasons for it. if the processing of the claim is delayed for any reason, the

director shall notify the claimant, in writing, within three (3) weeks of the date the application for

benefits is filed of the reason for the delay. Unless the claimant or any other interested party,

within fifteen (15) days, requests a hearing before the board of review, the determination with

reference to the claim is final. However, for good cause shown the fifteen (15) day period may be

extended after notification by the director has been mailed to his or her last known address, as

provided in this section. At any time within one year from the date of a monetary determination,

the director, upon request of the claimant or on his or her own motion, may reconsider his or her

determination if he or she finds that an error in computation or identity has occurred in

connection with it or that additional wages pertinent to the claimant's status have become

available, or if that determination has been made as a result of a nondisclosure or

misrepresentation of a material fact.

     (b) If an appeal is duly filed, benefits with respect to the period prior to the final decision,

if it is found that those benefits are payable, shall be paid only after the decision. If an appeal

tribunal affirms a decision of the director, or the board of review affirms a decision of an appeal

tribunal allowing benefits, those benefits shall be paid regardless of any appeal which may

subsequently be taken.

 

     28-41-38. Confidential Health Information.-- Information pursuant to any individual's

temporary disability claim or temporary caregiver insurance claim shall be held confidential in

accordance with chapters 39-41, section 28-39-19, 5-37.3, and all applicable state and federal

regulations.

 

     28-41-39. Powers and Duties.-- The director of the department of labor and training

shall have the following powers and duties:

     (1) To promulgate regulations relative to the operation of the temporary caregiver

insurance program;

     (2) To create all necessary applications and certificates to fulfill the purposes of this

section;

     (3) To disseminate information regarding the program to Rhode Island employers and

shall carry out a public education program to inform workers and employers about the availability

of benefits under the temporary caregiver insurance program. The director may use a proportion

of the funds collected for the temporary caregiver insurance program in a given year to pay for

the public education program and/or funding received from other sources for the purpose of

educating the public about their benefits. Outreach information shall be available in English and

other languages; and

     (4) To inform Rhode Island employees of their disability insurance rights and benefits

due to the employee's own sickness, injury, or pregnancy, or the employee's need to provide care

for any sick or injured family member or new child. The notice shall be given by every eligible

employer to each new employee hired on or after January 1, 2014, and to each employee taking

leave from work on or after January 1, 2014 due to pregnancy or the need to provide care for any

sick or injured family member or new child. The director shall require each employer to post and

maintain information regarding the program in accordance with section 28-41-15.

 

     28-41-40. Fraud and Misrepresentation of Benefits. -- (a) The temporary caregiver

insurance program shall be part of the temporary disability insurance fund. If the director finds

that any individual falsely certifies the medical condition of any person in order to obtain family

temporary disability insurance benefits, with the intent to defraud, whether for the maker or for

any other person, the director shall assess a penalty against the individual in the amount of

twenty-five percent (25%) of the benefits paid as a result of the false certification. Unless

otherwise specified to the contrary, all of the provisions of chapters 39 through 41 of this title

shall apply to the temporary caregiver insurance program.

      (b) If a physician or other qualified health care provider licensed by a foreign country is

under investigation by the department for assisting in the filing of false claims and the department

does not have the legal remedies to conduct a criminal investigation or prosecution in that

country, the department may suspend the processing of all further certifications until the licensed

qualified health care provider fully cooperates and continues to cooperate with the investigation.

A qualified health care provider licensed by and practicing in a foreign country who has been

convicted of filing false claims with the department shall be barred indefinitely from filing a

certificate in support of a temporary disability insurance or temporary caregiver insurance claim

in the state of Rhode island.

 

     28-41-41. Criminal Prosecution. -- All criminal actions for any violation of chapter 39 -

41 of this title, or any rule or regulation of the department shall be prosecuted by the attorney

general, or by any qualified member of the Rhode Island bar, that shall be designated by the

director and approved by the attorney general to institute and prosecute that action.

 

     28-41-42. Receipt of Federal Funds. -- To the extent that funds are made available by

the federal government, under title III of the Social Security Act, (42 U.S.C. 501 et seq.), or

otherwise for such purpose, the expenses of administering chapter 39-41 of this title shall be paid

from those funds, provided that this section shall not be considered to permit any expenditure of

funds from the employment security administration account contrary to section 28-42-29. In the

event that the Social Security Act is amended to permit funds granted under Title III to be used to

pay expenses of administering a sickness compensation law, such as chapter 39-41 of this title,

then from and after the effective date of that amendment, the expenses of administering those

chapters shall be paid out of the employment security administration account or any other account

or fund in which funds granted under Title III are deposited.

 

     SECTION 2. This act shall take effect upon passage.

     

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LC02024/SUB A/2

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