RI schools get ready for new temporary caregiver leave law

By Sheri L. Pizzi and Greg Vanden-Eykel

Schools that have elected to participate in Rhode Island’s Temporary Disability Insurance program should revise their employment manuals, policies, and information brochures to ensure compliance with new statewide employee leave requirements that went into effect Jan. 1.

Gov. Chafee in July 2013 signed into law the Temporary Caregiver Insurance program (TCI), which expands the temporary disability benefits provided to Rhode Island employees. Rhode Island joins New Jersey and California in mandating that employers provide all employees with temporary caregiver insurance, defined as wage replacement benefits to workers who take time off from work to care for or bond with statutorily-identified family members.

Under the TCI, most Rhode Island employers, including schools, must provide temporary caregiver benefits to employees who properly request leave. Public and charter schools that have not elected to participate in the state’s Temporary Disability Insurance program, and unionized school employees who have not elected to participate in the Temporary Disability Insurance program through their collective bargaining process are exempt from participating in the TCI program.

For those schools required to provide TCI benefits, they will not bear any additional costs by providing this leave because employees will contribute to a disability benefits pool from their pay checks, similar to the funding mechanism currently in place for the state’s Temporary Disability Insurance program.

Under the TCI, non-exempt schools must provide each employee with up to four weeks of leave per benefit year, paid through the Temporary Disability Insurance benefits program, so that an employee can:

  • Bond with his/her newborn child or a child newly placed for adoption or foster care with the employee or domestic partner; or
  • Care for a child, parent, parent-in-law, grandparent, spouse, or domestic partner, who has a serious health condition.

In addition to providing paid leave, non-exempt schools must restore the employee to his/her position, under the same terms and conditions of employment, that he/she held prior to taking temporary caregiver leave. Among other things, this includes paying the employee’s health benefits, subject to employee contribution, while the employee takes his/her temporary caregiver leave.

In other words, non-exempt schools cannot take any adverse employment actions (e.g., termination, demotion, reduction in benefits) because an employee requests leave under the TCI.

Filling gaps in existing law

The TCI fills gaps in benefits created by the Family Medical Leave Act (FMLA) and the Rhode Island Paternal and Family Medical Leave Act (RIPFMLA).

Currently, the FMLA and RIPFMLA apply to employers with 50 or more employees. In addition, employers are required to provide unpaid leave only to employees who have worked for them for at least 1,250 hours during the 12-month period prior to leave (under the FMLA) or for 12 consecutive months prior to the effective leave date (under the RIPFMLA).

However, under the TCI, most Rhode Island employers are required to provide paid caregiver leave to all employees regardless of how long an employee has worked for the employer.

Non-exempt schools are required to provide leave under the TCI only if employees properly request such leave. In addition, eligibility for these benefits requires an employee to be out of work seven consecutive days or longer for any of the reasons set forth in the statute and regulations.

Unless the event causing the leave is unforeseeable or an emergency, participating employees must provide their school employer with a written notice of intent to take temporary caregiver leave 30 days prior to taking such leave.

The Department has not yet determined the required content of such notice or the specific consequences of a failure to provide the requisite notice. However, the Department has developed and published the TCI application form. Schools should make copies of this form available upon request by employees.

Nevertheless, employers may delay or reduce a claimant’s TCI benefits when an employee’s request is not timely. Ultimately, the Department will approve or deny an employee’s request. The Department began accepting TCI claims on Jan. 5.

All employee requests should be maintained in the respective employee’s confidential personnel file.

In addition, each participating employee is required to complete a certificate of eligibility with the Department explaining the necessity of the caregiver leave. Schools should request from each employee a copy of the application filed with the Department and maintain it in the employee’s personnel file.

TCI leave interacts with other leave benefits available to employees. Employers must be aware that employees are not permitted to concurrently file for both TCI leave and temporary disability benefits for the same purpose.

Also, if an employee requesting leave under the TCI is also eligible to take leave under FMLA and/or RIPFMLA, non-exempt schools are entitled to require those employees to take their temporary caregiver leave concurrently with FMLA and/or RIPFMLA leave.

Lastly, employers must permit valid FMLA, RIPFMLA, and/or temporary disability benefits to an employee for serious health conditions experienced by the employee himself/herself in addition to granting TCI benefits. At no time during a benefit year, however, may an employee receive more than 30 times his/her benefit rate.

Ensuring compliance with the TCI

Rhode Island employers covered by the new statute must physically provide employees hired on or after Jan. 1 with notice of the TCI program and their disability insurance rights and benefits under the new statute. Likewise, employers should provide notice of the TCI to all employees hired before Jan. 1.

Further, every employer covered by the new statute must post information concerning employees’ rights under the TCI in conspicuous locations in their offices. This will require drafting documents that clearly explain TCI benefits available to employees. It is further recommended that employers draft and provide the notices in the primary languages spoken by their employees.

In addition, non-exempt schools should amend their employee handbooks, benefits brochures, and other applicable employment policies to address these new benefits.

Non-exempt schools should ensure that employee questions about the TCI program can be answered and employee requests are properly handled. In fact, exempt schools should also be aware of the new legislation and be prepared to answer questions from employees curious as to the availability of TCI benefits.

Where appropriate, non-exempt schools should draft new policies to ensure that employee TCI requests and applications with the Department are timely received, reviewed, and filed confidentially.

Careful planning now will save valuable time and resources in the future. Non-exempt schools should closely review existing policies in conjunction with new TCI law, identify gaps in their existing policies, and remedy any shortcomings in those existing plans and procedures.

Taking these steps now, rather than after the first employee request is submitted, will ensure that schools remain ahead of the curve, and are best prepared to address potential complaints from employees.

Sheri is a partner in the firm’s Providence office and Greg is an associate in the Boston office. Their practices include providing employment law guidance to school clients and employers.