By Neal J. McNamara and Jillian S. Folger-Hartwell
On June 23, 2008, Governor Carcieri signed into law the Rhode Island Military Family Relief Act, H.B. 7774, 2008 Leg. Sess. (R.I. 2008), S.B. 2760, 2008 Leg. Sess. (R.I. 2008) (to be codified at R.I. Gen. Laws §§ 30-33-1 et seq.)(“Act”), which took effect immediately. This new leave law has important implications for Rhode Island employers, both small and large.
Under the Act, spouses or parents of individuals who are called to military service lasting longer than thirty (30) days may request family military leave. Businesses that employ between fifteen (15) and fifty (50) employees must provide up to fifteen (15) total days of leave to such an employee during the time the federal or state military orders are in effect. Employers who have more than fifty (50) employees must provide up to thirty (30) total days of family military leave.
This leave may be unpaid and may only be taken if the employee has exhausted all accrued vacation leave, personal leave, compensatory leave, or any other leave that may be granted to the employee, with the exception of sick or disability leave. In addition, if the leave will consist of five (5) consecutive workdays or more, at least fourteen (14) days’ notice must be given to an employer. If the leave consists of less than five (5) consecutive days, the employee need only give as much advance notice as is “practicable.” Employers may, however, require certification from the proper military authority to verify the employee’s eligibility to take the requested family military leave.
During any family military leave, the employee must be permitted to continue their benefits at their own expense. The employer and employee, however, may negotiate for the employer to maintain benefits at the employer’s expense for the duration of the leave. Upon return from leave, employees must be reinstated to the same position or a position with “equivalent seniority status, employee benefits, pay and other terms and conditions of employment.”
The Act imposes several new requirements on employers. First, although businesses that employ fewer than fifty (50) employees are not required to provide leave under the Family and Medical Leave Act of 1993, 29 U.S.C. §§ 2601 et seq. (2008), or the Rhode Island Parental and Family Medical Leave Act (“RIPFMLA”), R.I. Gen. Laws §§ 28-48-1 et seq. (2008), businesses with as few as fifteen (15) employees are subject to the new Act’s provisions. In addition, unlike the leave provisions of the FMLA and the RIPFMLA, an employee need not provide any reason for leave under the Act, but need only show that his or her spouse or child has been called to military service lasting longer than thirty (30) days. Moreover, unlike leave provided under the FMLA and/or RIPFMLA, an employee’s eligibility for leave is not measured based on the number of days the employee has taken in a calendar year; rather, the employee is entitled to this leave “during the time the federal or state orders are in effect.” Thus, an employee may be eligible for family military leave under the Act, even if he or she has exhausted his or her allotted FMLA or RIPFMLA leave time.
Like the FMLA and the RIPFMLA, the Act provides that an employee must be reinstated to the same or a similar position upon his or her return from leave. Thus, employers may need to fill some positions temporarily for up to thirty (30) days. In addition, the Act appears to contemplate, and certainly does not prohibit, that this leave may be taken intermittently. Thus, an employer could be faced with numerous absences of varying lengths during the time the employee’s family member has active orders. Moreover, the Act’s provision that benefits may be continued at the employee’s expense has little practical value for an employer because the amount of leave time permitted under the Act amounts to no more than a total of thirty (30) days. It would likely be administratively cumbersome for an employer to attempt to have an employee pay for his or her benefits during such short periods of leave time.
Ultimately, employers who previously believed they were not required to comply with federal and state family leave laws because they have fewer than fifty (50) employees, may need to update or develop leave policies based on the Act’s provisions. In addition, larger employers will need to review and update their leave policies to ensure their existing policies comply with the Act.