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:

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

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

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     28-39-2. Definitions.

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

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following meanings unless the context clearly requires otherwise:

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

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

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

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

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

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

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

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

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

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

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

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

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

 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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benefits, as provided in § 28-41-7;

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

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

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during which his or her unemployment is caused by sickness;

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

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

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

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

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

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

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

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

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

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

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

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

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

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     (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

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

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

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

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

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

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

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

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

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political subdivisions;

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

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

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

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

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

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

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this chapter;

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

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

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

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

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if totally unemployed due to sickness and eligible.

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

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

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

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

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

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

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

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

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

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

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subdivision for that week.

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

 

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§ 28-39-7;

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

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

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or profits;

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

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

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

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

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

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reserve fund.

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

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

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

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

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

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

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

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

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

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

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

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

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

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paying benefits under chapter 41 of this title; and

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

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

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

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

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

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

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

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

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

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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

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

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calendar year beginning on the next January 1.

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

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

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

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

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

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

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each year as follows:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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as follows:

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

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

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

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

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

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

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

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

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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

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

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

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

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

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

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

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

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

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the year prior to July of the succeeding calendar year.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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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,

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

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

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

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

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

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

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

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

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

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

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     28-41-7. Total amount of benefits.

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

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

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

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

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

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

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

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higher multiple of one dollar ($1.00).

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     28-41-34. Temporary caregiver insurance.

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

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

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

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

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grandchild, or to bond with a new child.

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     Definitions as used in this chapter:

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

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

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employee who stands in loco parentis to that child.

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

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

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

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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.

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

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

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partner when he/she was a child.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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shall not be required.

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

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

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

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     28-41-35. Benefits.

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

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

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regular and customary work because he or she is:

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

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

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36(c)(1); or

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

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

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

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

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     (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

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

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

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

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

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

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

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

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chapters 39-41.

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

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

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

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

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

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

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following:

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

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

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

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

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

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

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

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

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benefit rate in any benefit year.

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

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

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

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

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

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the commencement of leave.

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

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

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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

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

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commencement of the caregiver benefits.

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

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

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

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

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

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

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

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Leave Act.

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

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

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

15

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

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

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

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

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

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

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

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     28-39-3. Exemption of governmental entities.

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

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

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

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

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

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

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     28-39-3.2. Manner of election.

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

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

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

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

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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

2

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

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

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deemed to be in employment.

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     28-39-32. Limitation of prosecutions.

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

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

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

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     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

***

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

2

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

3

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

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

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

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siblings or grandchildren eligible for benefits.

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     This act would take effect upon passage.

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LC000825

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LC000825 - Page 12 of 12