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Thursday, November 21, 2019

Details of new Rhode Island sick leave law will leave employers scratching heads, attorney says

By Dee Thompson | Nov 1, 2017

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PROVIDENCE, R.I (Legal Newsline) – The Rhode Island Healthy and Safe Families and Workplaces Act was signed into law in September with the intent of giving employees more paid time off, but some attorneys feel the new law is confusing and will cause more headaches for employers if it is not fixed.

Also known as the Sick Leave Law, it lets workers accrue paid time off to use if they are sick or just need time off for personal reasons. It applies to employers with more than 18 employees. 

Alicia Samolis, a partner with Partridge Snow & Hahn and the chair of the employment department, told Legal Newsline the new law is likely to generate confusion and litigation.

“If the law is not clarified, there will be litigation for the worst reasons. Employers will try to comply, guess what it means, and get it wrong and litigation will result," said Samolis, who has been practicing employment law for 11 years. 

Starting July 1, 2018, employers must allow employees who have been employed more than 90 days to accrue up to 24 hours leave in 2018, 32 hours in 2019, and 40 hours thereafter. Employees accrue an hour of paid leave time for every 35 hours worked. The leave can be used for illness, vacation, to stay home with a child on a snow day, etc.

Samolis feels the new law was drafted with good intentions, but it’s problematic. 

“The public is thinking most employees out there nowadays get some sort of PTO (paid time off) but we should have some sort of law in place requiring all employers to give it," she said.

"Theoretically, that sounds pretty reasonable. There are a lot of problems when you see a law like this pass because of the details. It’s definitely a situation of the devil being in the details."

Samolis explains that a lot of other states have sick time laws, but she notes they are usually very clear laws. 

“What the public really doesn’t understand is now bad this new Rhode Island law is for business from a logistical implementation standpoint. There are major problems with laws like this,” Samolis said.

Samolis explained that employers who don’t have paid-time-off policies are actually still giving time off. 

“They generally are still giving both paid and unpaid time, even if they don’t have policies in a handbook. You can’t really run a business nowadays and fire anyone who takes a sick day to take a family member to the doctor or who just needs a day off for personal reasons,” she said. 

Employers will now have to give time off to their underperforming employees. They can’t just reward good employees. 

“When a good employee wants time off, employers have to say yes or they are going to lose their talent,” she said.

Employers must, under the new law, treat good and bad employees the same.

“Their worst employees get extra protection, extra benefits, and of course there’s a retaliation provision, which is very common, which means now the employee they were thinking about firing takes the time, and if they are then fired you might get a claim because it looks like retaliation,” Samolis notes.

Another issue is that employers who have a current PTO policy have to hire an attorney to amend it.

“Before this law, if I have three employees who want to take off Monday and for the business to run I need only two of them to take the time off, I can make the decision based upon when they asked for it, how good they are doing," Samolis said.

"But now I potentially might have to tell the long-term employee who scheduled the vacation three weeks in advance, 'Now you can’t take Monday off because we have one employee with an emergency and we also have an employee with a pre-planned doctor’s appointment.'

“It causes the employer to have to be more strict with their PTO policy, which employees don’t like either. That’s another reason employers oppose it and the public isn’t really aware of why.”

There is the potential for abuse, Samolis feels.

“If you read the Rhode Island law, it’s like some of the other laws. They are taking away the employer’s ability to do certain things. The employers generally can’t ask for a doctor’s note relating to sickness unless the employee is out for three days or more, for instance,” she notes.

Another issue is the new law is unclear about scheduling the time off when it’s not an emergency sickness, she says.

“If I’m scheduling a yearly appointment under the FMLA (Family and Medical Leave Act) I have to make sure I choose a convenient time. That usually means Saturday, or at the end of the day or the beginning of the day. The bad employee is going to pick noon on Friday for all those wellness appointments,” Samolis says. 

The final reason Samolis feels the new Rhode Island law creates problems is that there are other laws employers may need to comply with regarding time off, and it’s confusing for employers to be able to comply with all the different laws. 

“If it’s the employee’s own sickness you have the ADA (Americans with Disabilities Act) and in Rhode Island we have the Fair Employment Practices Act and the Civil Rights Act. Those state laws apply to employers with four or more employees. FMLA exists on a federal level to take care of family members. We have Rhode Island FMLA. You also have other paid sick time laws," she said.

"Employees on a federal contract get seven days of paid sick time. So Rhode Island employers who are federal contractors have to abide by both laws. Employers have to determine if a day off counts for FMLA, or ADA, or how does it count? This is a huge issue with employment laws generally. The legislature does not seem to know all the laws out there, or if they do, they aren’t addressing them."

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State of Rhode Island