FMLA: Rhode Island
Federal law and guidance on this subject should be reviewed together with this section.
Author: Stephen Melnick, Littler
- The Rhode Island Parental and Family Medical Leave Act (RIPFMLA) is substantially similar to the federal Family and Medical Leave Act (FMLA), but employers should be aware of substantive differences that exist between the state and federal law. See Parental and Family Medical Leave Act.
- The Rhode Island Temporary Caregiver Insurance Program provides employees with four weeks of wage replacement when an employee takes leave to care for certain family members or to bond with a new child. The compensation is funded through a state insurance program. Even employees who are not eligible under RIPFMLA or the FMLA may qualify for temporary caregiver insurance, including the parents of a same-sex spouse. See Temporary Caregiver Insurance Program.
- Employees in Rhode Island may be eligible to take unpaid family military leave of up to 30 days (dependent on the size of the employer) if the employee's child or spouse is on active military duty. See Family Military Leave Act.
Family and Medical Leave, Generally
Generally, family and medical leave laws require covered employers to provide eligible employees with job-protected leaves of absence for qualifying reasons. The primary federal law governing leave is the Family and Medical Leave Act (FMLA). Employers covered under the FMLA may also be required to provide leave under the Pregnancy Discrimination Act (PDA) and the Americans with Disabilities Act (ADA).
In addition to the federal laws, Rhode Island employers may also be subject to the Rhode Island Parental and Family Medical Leave Act (RIPFMLA), the Rhode Island Family Military Leave Act and the Temporary Caregiver Insurance (TCI) Program.
Same-Sex Marriage - Windsor, Obergefell and the FMLA Definition of Spouse
On June 26, 2013, the Supreme Court in United States v. Windsor, +2013 U.S. LEXIS 4921, invalidated Section 3 of the Defense of Marriage Act (DOMA), which defined a spouse as a person of the opposite sex who is a husband or a wife. Before Windsor, DOMA's definition of spouse applied to the FMLA, so same-sex married couples were not allowed to take FMLA leave to care for their spouse. Post-Windsor, FMLA regulations defined a spouse as a husband or wife as defined or recognized under state law for purposes of marriage in the state where the employee resides, including common law marriage in states where it is recognized. In other words, an employee's right to take FMLA leave to care for his or her spouse was based on whether the couple's marriage was recognized in their state of residency.
On March 27, 2015, the DOL issued a Final Rule amending the FMLA's definition of spouse, making FMLA spousal leave eligibility universal for all legally married same-sex spouses. The new definition looks to the law of the state in which the marriage was entered into, as opposed to the law of the state in which the employee resides. This "place of celebration" rule allows all legally married couples to have consistent FMLA family leave rights no matter where they live.
On June 26, 2015, the Supreme Court ruled that the 14th Amendment: (1) requires a state to license a marriage between two people of the same sex; and (2) requires a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out of state. See Obergefell v. Hodges, +2015 U.S. LEXIS 4250 (U.S. June 26, 2015). Accordingly, same-sex marriage is legal nationwide, and couples lawfully married in any state, including Rhode Island, are entitled to FMLA spousal leave benefits.
In addition, Rhode Island recognizes civil unions or registered domestic partnerships performed out of state as civil unions in Rhode Island. Therefore, a civil union and registered domestic partnership entered into out of state will be afforded the same state-based rights, benefits and protections as married couples under Rhode Island law (including the right to state leave). +R.I. Gen. Laws § 15-1-8; R.I. Atty Gen. Op., Feb. 20, 2007 (declaring that Rhode Island recognizes out-of-state same-sex marriages). Couples in a civil union from another state cannot apply to have their civil union converted to a marriage by Rhode Island.
Rhode Island's marriage equality law ended the ability of same-sex couples to enter into new civil unions in Rhode Island. However, any couples already in a Rhode Island civil union may convert their civil union into a Rhode Island marriage. If a couple chooses not to convert their civil union into a marriage, the civil union will continue until:
- The parties dissolve it; or
- A civil union spouse dies.
Parties to a preexisting Rhode Island civil union or an out-of-state civil union or domestic partnership will be treated as married for purposes of Rhode Island state-based rights, benefits, protections and responsibilities.
John is a long-term employee of Acme Marketing. John is in a civil union with Fred who just found out he has cancer and has to undergo extensive treatment. John requests 12 weeks of RIPFMLA leave to care for Fred. After reviewing John's request and supporting documents, Acme Marketing grants John's request.
Three months after returning from this leave, John finds out that he has a serious heart condition that requires immediate surgery. John requests FMLA leave to take care of his own serious health condition. Assuming John provides the appropriate certification and meets the other FMLA eligibility requirements, Acme Marketing must provide John with an additional 12 weeks of leave under the FMLA (thus totaling 24 weeks of leave in the same year).
A Rhode Island employer should be careful if it seeks to confirm an employee's same-sex spousal relationship (for purposes of the FMLA) to ensure it does not discriminate in any way. While the FMLA allows an employer to confirm a family relationship, the employer's practices to confirm such relationships should be the same for employees in same-sex marriages as those in opposite-sex marriages (e.g., if an employer does not ask heterosexual employees for marriage licenses it should be careful about asking homosexual employees for such documentation).
Apart from FMLA considerations, employers with employees that reside in Rhode Island should look at existing policies that provide for leave based on spousal relationships, such as non-FMLA medical leave, bereavement leave or military leave. Policy language (such as how a spouse is defined) may need to be revised in light of the new Rhode Island law on same-sex marriage. In addition, employers should review and amend their workplace policies regarding sexual orientation discrimination.
Parental and Family Medical Leave Act
The RIPFMLA is substantially similar to the federal FMLA, but employers should be aware of substantive differences that exist between the state and federal law. The definition of eligible employee is different, the definition of family member is broader under the Rhode Island law and eligible employees may take up to 13 weeks of job protected leave in two calendar years (as opposed to 12 weeks in calendar year under the FMLA). See Employee Eligibility; Purpose and Length of Leave.
In addition, employees in Rhode Island may be eligible to take unpaid family military leave of up to 30 days (depending on the size of the employer) if the employee's child or spouse (including the parents of a same-sex spouse) is on active military duty. See Family Military Leave Act.
Similar to the FMLA, the RIPFMLA applies to employers with 50 or more employees. +R.I. Gen. Law § 28-48-1(3); +CRIR 16-000-005(1)(a). In addition, any person who acts directly or indirectly in the interest of any employer may also be liable under the act.
Employees will be eligible for leave under RIPFMLA if they are full-time employees who work an average of 30 or more hours per week and have worked for the same employer for 12 consecutive months. +R.I. Gen. Laws § 28-48-1(2); +R.I. Gen. Laws § 28-48-2(a); +CRIR 16-000-005(1)(b).
Rhode Island's eligibility requirements are less strict than the FMLA's; therefore, more employees may be eligible for state leave than for federal FMLA leave.
Purpose and Length of Leave
Under the RIPFMLA, eligible employees may take leave for:
- The birth of a child;
- The placement of a child 16 years or younger for adoption;
- The serious illness of a family member; and
- The employee's own serious illness.
A serious illness is defined to mean a disabling physical or mental illness, injury, impairment or condition that involves inpatient care in a hospital, nursing home, or hospice, or outpatient care requiring continuing treatment or supervision by a health care provider.
Family member is defined as a parent, spouse, child, mother-in-law, father-in-law or the employee himself or herself. The RIPFMLA is broader than the FMLA in that in addition to taking leave to care for a spouse (including a same-sex spouse or out-of-state civil union or registered domestic partner), parent or child under the federal FMLA, Rhode Island employees may also take leave to care for a mother-in-law or father-in-law (including a same-sex spouse's parents or out-of-state civil union or registered domestic partner's parents). +R.I. Gen. Laws § 28-48-2; +R.I. Gen. Laws § 28-48-11.
An employer that allows an employee to use sick leave after the birth of a child must allow the same time be used by an employee in connection with the adoption of a child 16 years of age or younger. +R.I. Gen. Laws § 28-48-11.
Eligible employees may take up to 13 consecutive workweeks of parental or family leave in any two calendar years. +R.I. Gen. Laws. § 28-48-2(a); +CRIR 16-000-005(2)(a). Employees are entitled to use the most advantageous combination of leave available to them under both state and federal law. Therefore, an employee in Rhode Island may take up to 25 weeks of job-protected leave within a two-year period by taking, for example, 13 weeks of RIPFMLA leave in one year and then 12 weeks of FMLA leave in the following year.
In January 2013, Julie, an employee of ACME Corp., takes 13 weeks of leave for the birth of her son. This exhausts her RIPFMLA leave. In August 2014, she asks to take 13 weeks off to care for her father-in-law who has a serious medical condition. This leave would not be protected by RIPFMLA, because she already used her 13 weeks of RIPFMLA leave in the 24-month period.
Intermittent or Reduced Schedule Leave
Unlike under the FMLA, intermittent or reduced schedule leave is not available under the RIPFMLA. Therefore, all leave taken under the Act must be taken at one time. +R.I. Gen. Laws 28-48-2(a); +CRIR 16-000-005(2)(a).
Notice and Certification
For parental and family medical leave, an employee must give at least 30 days' notice of the intended date upon which leave will start and end, unless prevented by medical emergency from giving such notice. +R.I. Gen. Laws § 28-48-2(a); +CRIR 16-000-005(2)(b). Notice to the employer must be in writing and must verify the truthfulness of the factual representations made by the employee. The notice must include information that reasonably identifies the employee and his or her employment relationship to the employer, as well as a detailed description of the circumstances entitling the employee to leave. +CRIR 16-000-005(4)(a).
An employer may require written medical certification from a physician caring for the person who is the reason for the employee's leave, and the certification must specify the probable duration of the leave. +R.I. Gen. Laws § 28-48-2(c); +CRIR 16-000-005(2)(d).
Employers must post a notice of an employee's rights under the RIPFMLA.
Compensation and Benefits During Leave
Leave is generally unpaid, with the exception of four weeks of wage replacement through the state's temporary caregiver insurance program described in more detail below.
During a parental or family leave, an employer must maintain any existing health benefits as if the employee had remained continuously employed. Prior to the leave, the employee must pay to the employer a sum equal to the employer's portion of the premium required to maintain the employee's health benefits during the period of leave. The employer must return the payment within 10 days following the employee's return. +R.I. Gen. Laws § 28-48-3(b); +R.I. Gen. Laws § 28-48-3(c); +CRIR 16-000-005(3)(b).
The taking of leave under the RIPFMLA may not result in the loss of any benefit accrued before the taking of the leave. The RIPFMLA does not entitle an employee to any benefits other than those to which the employee would have been entitled had he or she not taken leave. +R.I. Gen. Laws § 28-48-4(a); +R.I. Gen. Laws § 28-48-4(b); +CRIR 16-000-005(3)(c).
Upon return, an employee is entitled to reinstatement to his or her prior position or a position with equivalent seniority, status, employment benefits, pay and other terms and conditions of employment. +R.I. Gen. Laws § 28-48-3(a); +CRIR 16-000-005(3)(a).
An alleged violation of the RIPFMLA may result in a lawsuit filed by the employee or a complaint filed with the Director of Labor and Training of the State of Rhode Island. +R.I. Gen. Laws § 28-48-6.
Temporary Caregiver Insurance Program
Rhode Island employers must provide up to four weeks of job-protected leave to an employee who is unable to perform his or job duties because he or she needs to care for certain seriously ill family members or who needs time off to bond with a newborn (i.e., under one year of age), adopted or foster child. During the leave, employees are eligible to receive temporary caregiver insurance (TCI) as a form of wage replacement benefits. The TCI program is financed through employee payroll deductions, and no employer contribution is required.
Employers Covered Under the TCI Program
The TCI program is much broader than the RIPFMLA. It has the same scope as the Rhode Island unemployment law, so most employers and employees are covered.
Employee Eligibility/Reasons for Leave
Rhode Island's TCI benefits may be used by an employee who is unable to perform his or her work duties because he or she needs:
- To care or bond with a newborn (i.e., under one year of age), adopted or foster child; or
- To care for a seriously ill:
- Child (including a biological, adopted, foster or stepchild; a legal ward; a son or daughter of a domestic partner; and a son or daughter of an employee who stands in loco parentis to the child);
- Spouse (including a common law spouse and same-sex spouse);
- Parent (including a biological, adoptive, foster or stepparent; a legal guardian; and a person who stood in loco parentis to the employee or the employee's spouse or domestic partner when the employee or employee's spouse or domestic partner was a child);
- Parent-in-law (including the parents of a same-sex spouse or domestic partner);
- Grandparent; or
- Domestic partner (i.e., party to a civil union).
A person stands in loco parentis if he or she has 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 is not required.
Certificate of Eligibility
If an employee wishes to exercise his or her right to TCI, he or she must file a certificate form with the Department of Labor and Training. Once an employee requests leave, an employer should point the employee to the Department for more information. +R.I. Gen. Laws § 28-41-36; +R.I. Gen. Laws § 28-41-37.
Wage Replacement and Benefits
Employees are entitled to receive up to four weeks of wage replacement at two-thirds of their regular wages per benefit year. The leave is paid through the state, funded by deductions from employee compensation. Employees contribute to this program with each paycheck. An employer has no financial contribution.
The benefits are payable on the first day of leave taken to bond with a newborn or adopted child, and after the waiting period for caring for a family member with a serious health condition. The weekly benefit amount is 4.62 percent of the wages paid in a quarter. This does not include a dependency allowance. The weekly benefit rate remains the same throughout the entire benefit year.
Existing health benefits must continue to be provided to qualifying employees during leave. Employees remain responsible for any employee shared costs associated with the health benefits.
Interaction With the FMLA and RIPFMLA
Employers can require that employees who exercise their right to benefits under the TCI program take any temporary caregiver benefits received at the same time as any leave provided under the FMLA and/or the RIPFMLA (assuming they are eligible for either/or both leaves). +R.I. Gen. Laws § 28-41-35.
However, because the FMLA and RIPFMLA only apply to employers with 50 or more employees, and the TCI law applies to virtually all employers regardless of size, the TCI law may apply when the FMLA and/or RIPFMLA do not. Therefore, situations could arise in which the leaves will not run concurrently (e.g., if an employee has not been employed long enough to be entitled to leave under the FMLA or RIPFMLA, or when the qualifying reason for leave under the TCI law is not a qualifying reason for leave under the FMLA and/or RIPFMLA).
When these situations arise, an employee may take four weeks of job-protected leave under the TCI law (and receive wage replacement) and then later take 13 weeks of leave under the RIPFMLA (for which the employee will not receive wage replacement under the TCI law), for a total of 17 weeks of leave in a single year. Further, if the employee was ineligible for FMLA leave at the time he or she took RIPFMLA, he or she also could be eligible for an additional 12 (or 26) weeks of FMLA leave after he or she exhausts leave under the RIPFMLA.
Restoration After Leave
Unlike New Jersey and California, which also have a paid leave insurance program, Rhode Island's program offers job protection. +R.I. Gen. Laws § 28-41-35. Under Rhode Island's program, after an employee takes or exhausts his or her leave, an employer must restore the employee to the position he or she held before leave was taken or to a position with equivalent seniority, status, benefits, pay and other employment terms and conditions, including fringe benefits and service credits to which the employee was entitled when leave began.
Notice and Documentation
Employees must provide their employer with their written intent to take qualifying leave at least 30 days before leave will occur. Failure to provide notice may delay or reduce benefits, unless leave was unforeseeable (e.g., an emergency situation) or the time of the leave changes for unforeseeable reasons. +R.I. Gen. Laws § 28-41-35.
An employer must keep any information provided in connection with a claim confidential, to the extent possible by law. +R.I. Gen. Laws § 28-41-38.
A covered employer must provide notice of the temporary caregiver disability benefit to:
- All new employees;
- Any employee who takes leave from work due to pregnancy; or
- Any employee who takes leave to care for an ill family member or child.
The DLT is tasked with preparing policies and procedures to help employees and employers understand their rights and responsibilities. Until the DLT provides this further guidance, an employer should already:
- Post the required notice of TCI benefits;
- Have a process in place to notify new and eligible employees of TCI benefits;
- Have or create procedures for accepting the required written notice of intent to take temporary caregiver leave;
- Have or create a policy for handling notices received fewer than 30 days before an employee's anticipated leave of absence is to begin;
- Ensure managers, supervisors and HR are trained on keeping confidential all information regarding an employee's leave request or need for TCI; and
- Train HR on how to determine how TCI interacts with the FMLA and/or RIPFMLA.
Family Military Leave Act
The Rhode Island Family Military Leave Act requires employers to offer unpaid leave to families of servicemembers.
Although employers that employ fewer than 50 employees are not required to provide leave under the FMLA or the RIPFMLA, employers with as few as 15 employees are subject to Rhode Island's Family Military Leave Act.
Under the Rhode Island Family Military Leave Act, employers with between 15 and 50 employees must provide up to 15 total days of leave and employers with more than 50 employees must provide up to 30 total days of family military leave. +R.I. Gen. Laws § 30-33-3.
For leave under the Family Military Leave Act, employee eligibility requirements are similar to those under the federal FMLA. The law applies only to employees that have been with their employer for 12 months and have worked 1,250 hours in the previous 12 months. +R.I. Gen. Laws § 30-33-2. Unlike the federal FMLA, the Family Military Leave Act applies to both employees and independent contractors.
Purpose and Length of Leave
Eligible employees may take up to 15 total days of leave (for employers with between 15 and 50 employees) or up to 30 total days of leave (for employers with 50 or more employees) while deployment orders are in effect. +R.I. Gen. Laws § 30-33-3(a); +R.I. Gen. Laws § 30-33-3(b). Spouses or parents of armed servicemembers are eligible to take this leave. +R.I. Gen. Laws § 30-33-2(4).
An employee may not take leave under the Family Military Leave Act unless he or she has exhausted all accrued vacation and other leave (except sick leave and disability leave).
Notice and Certification
Employees taking family military leave must give at least 14 days' notice to their employer if the leave will be for five consecutive workdays or more. If the leave is for fewer than five days, the employee need only give notice as soon as "practicable." +R.I. Gen. Laws § 30-33-3(c).
Employers may require certification from the proper military authority to verify the employee's eligibility to take the requested military family leave. +R.I. Gen. Laws § 30-33-3(c).
Compensation and Benefits During Leave
During any family military leave, an employer must make it possible for the employee to continue his or her benefits at the employee's expense for the duration of the leave. The employer and employee may negotiate to maintain benefits at the employer's expense for the duration of the leave. Taking leave may not result in the loss of benefits accrued prior to the leave. +R.I. Gen. Laws § 30-33-4(b).
Upon return, an employee is entitled to reinstatement to his or her prior position or a position with equivalent seniority, status, employment benefits, pay and other terms and conditions of employment. +R.I. Gen. Laws § 30-33-4(a).
Under the Rhode Island Fair Employment Practices Act (FEPA), an employer with four or more employees must treat women affected by pregnancy, childbirth or related medical conditions the same for all employment-related purposes (including receipt of benefits under fringe benefit programs) as other persons not so affected but similar in their ability or inability to work. +R.I. Gen. Laws § 28-5-6(2).
In addition, the FEPA protects the rights of pregnant workers. The FEPA requires an employer to provide reasonable accommodations, including time off to recover from childbirth, to a pregnant employee upon her request for such accommodations. R.I. Gen. Laws § 28-5-7.4; +2015 Bill Text RI S.B. 276. For more details, please see Employee Management > Disabilities (ADA): Rhode Island.
Interaction of State and Federal Leave Laws
There are numerous types of other leaves that may be available to Rhode Island employees - some required by federal, state or local law, and some provided by company policy, as well as several sources of income replacement. See Employee Leaves > Other Leaves: Rhode Island.
Rhode Island employers must be conscious of the interaction between the FMLA, the RIPFMLA and the federal Americans with Disabilities Act (ADA). An employee with a serious health condition who exhausts his or her leave entitlement under the FMLA and RIPFMLA may nonetheless be entitled to additional leave, if additional leave would be considered a reasonable accommodation under the ADA and the employee is otherwise eligible for protection under the ADA. The FMLA regulations state that the ADA allows an indeterminate amount of leave, barring undue hardship to the employer, as a reasonable accommodation. See also Disabilities (ADA) > ADA Interplay; Disabilities (ADA): Rhode Island.
While some of these laws can run at the same time, others cannot. Rhode Island employers should remain alert to the various types of leave available and take care to track employees' leaves of absence, including:
- The date the leave begins;
- The type of leave; and
- The expected return date.
There are no developments to report at this time. Continue to check XpertHR regularly for the latest information on this and other topics.