The recent outbreak of the coronavirus (COVID-19) has implications specific to Rhode Island employers. On March 9, 2020, Rhode Island Governor Gina Raimondo declared a state of emergency. Four days later, on March 13, 2020, Governor Raimondo ordered all public schools closed for the week of March 16, 2020, and indicated she would revisit this order week-by-week.  Governor Raimondo made it clear that plans for “distance learning” may be put in place to keep students out of school in the upcoming weeks. In addition, the governor announced she was temporarily suspending the normal waiting period for unemployment and temporary disability insurance benefits, and issued a directive for childcare centers across the state to close.  More recently, on March 16, 2020, Governor Raimondo issued a directive that restaurants and similar businesses remain closed for eat-in dining. These and other COVID-19 emergency response initiatives will affect employers and employees, statewide.

Key Takeaways for Rhode Island Employers

The COVID-19 situation and the associated emergency measures will financially impact Rhode Island businesses. Governor Raimondo and the Rhode Island Department of Labor and Training (RIDLT) have implemented the following measures to alleviate some of the financial strain COVID-19 has placed on Rhode Island residents:

• RIDLT will waive the seven-day waiting period for unemployment insurance claims related to COVID-19
• RIDLT will waive the seven-day minimum amount of time that claimants must be out of work to qualify for Temporary Disability Insurance (TDI) or Temporary Caregiver Insurance (TCI) benefits
• RIDLT will waive the required medical certification, and, instead, will allow individuals to temporarily qualify via self-attestation that they were under quarantine due to COVID-19
• RIDLT has indicated TCI benefits are being extended to cover an employee’s absence from work to care for a child due to school or day care closings

Employees whose hours are reduced or who are laid off from work may seek unemployment benefits. The RIDLT has issued an emergency fact sheet to assist employers and employees during the COVID-19 public health emergency.  This includes a hotline to assist employers with related questions. 

Furloughs/Reductions in Hours/Layoffs

As the statewide emergency response continues, Governor Raimondo is calling for “social distancing” and recommending that Rhode Island residents stay inside.  Governor Raimondo also warned Rhode Islanders not to congregate in malls, restaurants, and public places.  As a result, many businesses will see a dramatic drop in customer patronage and may need to consider furloughs, layoffs, or reduced hours. 

With regard to furloughs and hour reductions, employers generally can schedule non-exempt employees for fewer days or hours without liability concerns. Employers do not need to pay non-exempt employees for time not worked. Exempt employees, however, require a more detailed analysis when considering furloughs or reduced hours as an alternative to layoffs. Exempt employees must be paid the same minimum salary for each pay period. Also, if an exempt employee performs any work during a workweek, the employee must receive his or her entire salary that week.  Failure to compensate an exempt employee for a week where any work is performed jeopardizes that employee’s exempt status. If an employer furloughs an exempt employee for an entire workweek, however, no salary is owed for that week and the employee’s status is not affected.  

When employees are furloughed, employers should expect that they will not work, including checking email and voicemail. Employers should consult with counsel to devise a plan and written policy concerning the following: (a) the type of activities permitted during a furlough; (b) the approval process for such activities; and (c) the employer’s expectation for recording any time spent on such activities.

Paid Time Off for School Closing and COVID-19-Related Issues Under the Healthy and Safe Families and Workplaces Act

With the recent school and childcare closings, it is important for employers to remember that employees can use paid time off under the Healthy and Safe Families and Workplaces Act (HSFWA). The HSFWA requires Rhode Island employers with 18 or more employees in Rhode Island to provide up to 40 hours of paid sick/safe leave to employees. The law not only provides that this time may be taken for COVID-19-related illness reasons or to care for a family member with the illness, but also provides that employees may use this paid time off for business, school and childcare closings. Specifically, the HSFWA permits employees to use sick/safe leave when the employee’s place of business is closed by order of a public official or to care for a child whose school or place of care has been closed by order of a public health official. Employees can also use paid sick/safe leave for quarantine purposes; specifically, if a public health official determines that the employee’s or a covered relation’s presence in the community could jeopardize the health of others due to their exposure to COVID-19. 

Temporary Disability Insurance Benefits/Temporary Caretaker Insurance Benefits

Rhode Island employees are entitled to short-term disability benefits for non-occupational disabilities, which is referred to as Temporary Disability Insurance (TDI). Employees are eligible for TDI if they are certified by a qualified healthcare provider to be functionally unable to perform their customary and regular work duties.

Rhode Island employees are also entitled to receive four weeks of paid time off per year to care for certain specified family members under Rhode Island’s Temporary Caregiver Insurance law (TCI). Normally, employees are able to collect TCI benefits in “any week in which he or she is unable to perform his or her regular and customary work” because they are: (1) bonding with a newborn child or a child newly placed for adoption or foster care; or (2) caring for a child, parent, parent-in-law, grandparent, spouse, or domestic partner who has a “serious health condition.”  TCI defines serious health condition as “any illness, injury, impairment, or physical or mental condition that involves inpatient care in a hospital, hospice, residential healthcare facility, or continued treatment or continuing supervision by a licensed health care provider.” The RIDLT has indicated these benefits are being extended to cover an employee’s absence from work due to the need to care for a child as the result of COVID-19-related school or childcare closings.  Employees applying for TDI or TCI due to COVID-19-related concerns should indicate this on their applications. It is also important to note that TCI can be used for up to four weeks of leave, and carries with it job protection during that time. Thus, employers should consult with legal counsel prior to terminating or laying off employees requesting and taking leave in connection with TCI benefits.

If an employee’s COVID-19-related absence qualifies under the above, employees may be able to utilize TDI or TCI to supplement income. The RIDLT has waived the seven-day minimum amount of time that claimants must be out of work to qualify for TDI/TCI benefits.

Emerging Developments in Employer-Paid Leave under Federal Law

On March 14, 2020, the U.S. House of Representatives passed HB 6201, an emergency response bill that includes provisions requiring employer-paid FMLA benefits and additional employer PTO to employees. Just two days later, on March 16, 2020, the House substantially revised the bill.  It is not clear, however, whether the Senate will approve the bill as passed, or whether there will be changes – perhaps some very significant – which will require the House to take it up again.

Littler will continue to provide updates on significant developments with this law and any Rhode Island developments as they emerge.