| 47 | | - | PART I SECTION 1. The Hawaii Revised Statutes is amended by adding a new chapter to be appropriately designated and to read as follows: "Chapter PAID FAMILY AND MEDICAL LEAVE § -1 Definitions. As used in this chapter, unless the context clearly requires otherwise: "Application year" means the twelve-month period beginning on the first day of the calendar week in which an individual files an application for family and medical leave insurance benefits. "Covered individual" means: (1) Any person who: (A) Has been working for an employer for at least fourteen weeks during each of which the individual has received remuneration in any form for twenty or more hours and earned wages of at least $400, during the fifty-two weeks immediately prior to paid leave granted under this chapter; or (B) Is self-employed, elects coverage, and meets the requirements of section -13; (2) Meets the administrative requirements outlined in this chapter and in rules adopted thereunder; and (3) Submits an application. "Department" means the department of labor and industrial relations. "Director" means the director of labor and industrial relations. "Domestic partner" means a person at least eighteen years of age who: (1) Is dependent upon the covered individual for support as shown by either unilateral dependence or mutual interdependence that is evidenced by a nexus of factors including but not limited to: (A) Common ownership of real or personal property; (B) Common householding; (C) Children in common; (D) Signs of intent to marry; (E) Shared budgeting; and (F) The length of the personal relationship with the covered individual; or (2) Has registered as the domestic partner of the covered individual with any registry of domestic partnerships maintained by the employer of either party, or in any state, county, city, town, or village in the United States. "Employee" includes any individual employed by an employer. "Employer" shall have the same meaning as that term is defined in section 387-1; provided that "employer" shall include the State or counties or any political subdivision thereof. "Family leave" means leave taken pursuant to section -2(a). "Family leave insurance benefits" means the benefits provided under the terms of this chapter to a covered individual while the covered individual is on family leave. "Family member" means: (1) A biological, adopted or foster child, stepchild or legal ward, a child of a domestic partner, or a child to whom the covered individual stands in loco parentis; (2) A biological, adoptive or foster parent, stepparent or legal guardian of a covered individual or a covered individual's spouse or domestic partner or a person who stood in loco parentis when the covered individual or the covered individual's spouse or domestic partner was a minor child; (3) A person to whom the covered individual is legally married under the laws of any state, or a domestic partner of a covered individual; or (4) A grandparent, grandchild or sibling (whether a biological, foster, adoptive or step relationship) of the covered individual or the covered individual's spouse or domestic partner. "Health care provider" means any person licensed under federal or state law to provide medical or emergency services, including but not limited to doctors, nurses, and emergency room personnel, or certified midwives. "Medical leave" means leave taken pursuant to section -2(b). "Medical leave insurance benefits" means the benefits provided under the terms of this chapter to a covered individual while the covered individual is on medical leave. "Next of kin" shall have the same meaning as that term is defined in section 101(17) of the federal Family and Medical Leave Act (29 U.S.C. 2611(17)). "Qualifying exigency" means leave based on a need arising out of a covered individual's family member's active duty service or notice of an impending call or order to active duty in the armed forces, including but not limited to providing for the care or other needs of the military member's child or other family member, making financial or legal arrangements for the military member, attending counseling, attending military events or ceremonies, spending time with the military member during a rest and recuperation leave or following return from deployment or making arrangements following the death of the military member. "Qualifying service member" means: (1) A member of the armed forces, including a member of the national guard or reserves, who is: (A) Undergoing medical treatment, recuperation, or therapy; (B) Otherwise in outpatient status; or (C) Is otherwise on the temporary disability retired list for a serious injury or illness that was incurred by the member in the line of duty on active duty in the armed forces, or a serious injury or illness that existed before the beginning of the member's active duty and was aggravated by service in the line of duty on active duty in the armed forces; or (2) A former member of the armed forces, including a former member of the national guard or reserves, who is undergoing medical treatment, recuperation, or therapy for a serious injury or illness that was incurred by the member in line of duty on active duty in the armed forces, or a serious injury or illness that existed before the beginning of the member's active duty and was aggravated by service in line of duty on active duty in the armed forces and manifested before or after the member was discharged or released from service. "Retaliatory personnel action" means denial of any right guaranteed under this chapter, including but not limited to any threat, discharge, suspension, demotion, reduction of hours, any other adverse action against an employee for the exercise of any right guaranteed in this chapter, or reporting or threatening to report an employee's suspected citizenship or immigration status or the suspected citizenship or immigration status of a family member of the employee to a federal or state agency. "Retaliatory personnel action" includes interference with or punishment for, in any manner, participating in or assisting an investigation, proceeding, or hearing under this chapter. "Serious health condition" is an illness, injury, impairment, pregnancy, recovery from childbirth, organ donation, termination of pregnancy, or physical or mental condition that involves inpatient care in a hospital, hospice, or residential medical care facility, or continuing treatment by a health care provider. "State average weekly wage" shall have the same meaning as that term is defined in section 386-1. § -2 Eligibility of benefits. (a) Beginning January 1, 2028, family leave insurance benefits shall be payable to an individual who: (1) Qualifies as a covered individual; and (2) Meets one of the following requirements: (A) Because of birth, adoption, or placement through foster care, is caring for a new child during the first year after the birth, adoption, or placement; (B) Is caring for a family member with a serious health condition; (C) Is caring for a qualifying service member who is the individual's next of kin; (D) Is a victim of domestic abuse, sexual assault, or stalking who needs leave for medical attention; mental health care or other counseling; victim services, including legal services; court appearances; or relocation for themselves or a family member; or (E) Has a qualifying exigency. (b) Beginning January 1, 2028, medical leave insurance benefits shall be payable to an individual who: (1) Qualifies as a covered individual; and (2) Has a serious health condition that makes the covered individual unable to perform the functions of the covered individual's position, except accident or disease connected with or resulting from employment as defined in section 386-3 or any other applicable workers' compensation law. § -3 Duration of benefits. (a) The maximum number of weeks during which family leave insurance benefits are payable in an application year shall be twelve weeks. (b) The maximum number of weeks during which medical leave insurance benefits are payable in an application year shall be twenty-six weeks. (c) The first payment of benefits shall be made to a covered individual within two weeks after the family leave begins and subsequent payments shall be made every two weeks thereafter. (d) Claims may be filed up to forty-five days in advance of the family leave, if anticipation of the family leave is possible. § -4 Amount of benefits. (a) Subject to the maximum weekly benefit amount pursuant to subsection (b), the weekly benefit shall be calculated by adding the amounts obtained by applying the following percentage to a covered individual's average weekly wage during the twelve months preceding submission of the application or the average weekly wage during the time the covered individual worked, if less than twelve months: (1) Ninety per cent of wages that are equal to or less than fifty per cent of the state's average weekly wage; (2) Sixty-six per cent of wages that exceed fifty per cent of the state's average weekly wage but is not more than one hundred per cent; and (3) Fifty-five per cent of wages that exceed one hundred per cent of the state's average weekly wage. (b) In no case shall the weekly benefit amount exceed the state average weekly wage. (c) Family and medical leave insurance benefits shall not be payable for less than eight hours of family and medical leave taken in one work week. § -5 Contributions. (a) Payroll contributions shall be authorized in order to finance the payment of benefits under and for administration and operation of the family and medical leave insurance program. (b) Beginning January 1, 2027, payroll contributions shall be paid by employers and employees in an amount to be determined by the department, based on a per cent of employee wages. The department shall be responsible for evaluating and determining on an annual basis the amount of payroll contributions necessary to finance the family and medical leave insurance benefits program. (c) An employer may deduct and withhold contributions from each employee of up to fifty per cent of the amount of payroll contribution determined by the department. (d) An employer with five or more employees shall remit one hundred per cent of the amount of payroll contribution determined by the department to the family and medical leave trust fund. (e) An employer with fewer than five employees shall remit fifty per cent of the amount of payroll contribution determined by the department to the family and medical leave trust fund. (f) A self-employed individual who is electing coverage under section -13 shall remit fifty per cent of the amount of payroll contribution determined by the department to the family and medical leave trust fund. § -6 Reduced leave schedule. (a) A covered individual shall be entitled, at the option of the covered individual, to take paid family and medical leave on an intermittent or reduced leave schedule in which all of the leave authorized under this chapter is not taken sequentially. Family and medical leave insurance benefits for intermittent or reduced leave schedules shall be prorated. (b) The covered individual shall provide the employer with prior notice of the schedule on which the covered individual will be taking the leave, to the extent practicable. Paid family and medical leave taken under this section shall not result in a reduction of the total amount of leave to which an employee is entitled beyond the amount of leave actually taken. (c) Nothing in this section shall be construed to entitle a covered individual to more leave than allowed under section -3. § -7 Leave and employment protection. (a) Any covered individual who exercises the covered individual's right to family and medical leave insurance benefits shall, upon the expiration of that leave, be entitled to be restored by the employer to the position held by the covered individual when the leave commenced, or to a position with equivalent seniority, status, employment benefits, pay, and other terms and conditions of employment, including but not limited to fringe benefits and service credits that the covered individual had been entitled to at the commencement of leave; provided that job duties and hours in the new position need not be identical to the previously-held position, but the employer shall make a reasonable effort to make them similar, at the employee's request. (b) During any leave taken pursuant to section -2, the employer shall maintain any health care benefits the covered individual had prior to taking such leave for the duration of the leave as if the covered individual had continued in employment continuously from the date the covered individual commenced the leave until the date the family and medical leave insurance benefits terminate; provided that the covered individual shall continue to pay the covered individual's share of the cost of health benefits as required prior to the commencement of the leave. (c) This section shall be enforced as provided in chapter 398. § -8 Retaliatory personnel actions prohibited. (a) It shall be unlawful for an employer or any other person to interfere with, restrain, or deny the exercise of, or the attempt to exercise, any right protected under this chapter. (b) An employer, temporary help company, employment agency, employee organization, or other person shall not take retaliatory personnel action or otherwise discriminate against a person because the person exercised rights protected under this chapter. These rights include but are not limited to the right to request, file for, apply for, or use benefits or leave provided for under this chapter; communicate to the employer or any other person or entity an intent to file a claim, a complaint with the department or courts, or an appeal; testify, plan to testify, or assist in any investigation, hearing, or proceeding under this chapter, at any time, including during the period in which the person receives family and medical leave insurance benefits under this chapter; inform any person about any employer's alleged violation of this chapter; and inform any other person of the other person's rights under this chapter. (c) It shall be unlawful for an employer's absence control policy to count paid family and medical leave taken under this chapter as an absence that may lead to or result in discipline, discharge, demotion, suspension, or any other adverse action. (d) Protections of this section shall apply to any person who mistakenly, but in good faith, alleges violations of this chapter. (e) This section shall be enforced as provided in chapter 398. § -9 Coordination of benefits. (a) Leave taken with wage replacement under this chapter that also qualifies as leave under the federal Family and Medical Leave Act or chapter 398 shall run concurrently with leave taken under the federal Family and Medical Leave Act or chapter 398. (b) An employer may require that payment made pursuant to this chapter be made concurrently or otherwise coordinated with payment made or leave allowed under the terms of disability or family care leave under a collective bargaining agreement or employer policy. The employer shall give employees written notice of this requirement. (c) This chapter does not diminish an employer's obligation to comply with any of the following that provide more generous leave: (1) A collective bargaining agreement; (2) An employer policy; or (3) Any other law. (d) An individual's right to leave under this chapter may not be diminished by a collective bargaining agreement entered into or renewed, or an employer policy adopted or retained, after the effective date of this chapter. Any agreement by an individual to waive the individual's rights under this chapter is void as against public policy. § -10 Notice. (a) Each employer shall provide written notice to each employee upon hiring and annually thereafter. An employer shall also provide written notice to an employee when the employee requests leave under this chapter, or when the employer acquires knowledge that an employee's leave may be for a qualifying reason under section -2(a)(2). Such notice shall include: (1) The employee's right to family and medical leave insurance benefits under this chapter and the terms under which the benefits may be used; (2) The amount of family and medical leave insurance benefits; (3) The procedure for filing a claim for benefits; (4) The procedure for selecting a designated person; (5) The right to employment protection and benefits continuation under section -7; (6) That discrimination and retaliatory personnel actions against a person for requesting, applying for or using family and medical leave insurance benefits is prohibited under section -8; and (7) That the employee has a right to file a complaint for violations of this chapter. (b) An employer shall display and maintain a poster in a conspicuous place accessible to employees at the employer's place of business that contains the information required by this section in English, Ilocano, Tagalog, Japanese, and any language that is the first language spoken by at least five per cent of the employer's workforce; provided that the notice has been provided by the department. The director may adopt rules to establish additional requirements concerning the means by which employers shall provide such notice. (c) Employees shall provide notice to their employers as soon as practicable of their intention to take leave under this chapter. § -11 Appeals. (a) The director shall establish a system for appeals in the case of a denial of family and medical leave insurance benefits. In establishing the system, the director may utilize any and all procedures and appeals mechanisms established under section 383-38. (b) Judicial review of any decision with respect to family and medical leave insurance benefits shall be permitted in a court of competent jurisdiction after an aggrieved party has exhausted all administrative remedies established by the director. (c) The director shall implement procedures to ensure confidentiality of all information related to any claims filed or appeals taken to the maximum extent permitted by applicable laws. § -12 Erroneous payments and disqualifications for benefits. (a) A covered individual shall be disqualified from family and medical leave insurance benefits for one year if the individual is determined by the director to have knowingly and wilfully made a false statement or misrepresentation regarding a material fact, or knowingly and wilfully failed to report a material fact, to obtain benefits under this chapter. (b) If family and medical leave insurance benefits are paid erroneously or as a result of misrepresentation, or if a claim for family and medical leave insurance benefits is rejected after benefits are paid, the department may seek repayment of benefits and penalties from the recipient. The amount of penalty shall not be greater than one hundred fifty per cent of the amount of benefits paid erroneously to the recipient. The director shall exercise the director's discretion to waive, in whole or in part, the amount of any payments and penalties where the recovery would be against equity and good conscience. § -13 Elective coverage. (a) A self-employed person, including a sole proprietor, partner, or joint venturer, may elect coverage under this chapter for an initial period of not less than three years. The self-employed person shall file a notice of election in writing with the director, as required by the department. The election shall become effective on the date of filing the notice. As a condition of election, the self-employed person shall agree to supply any information concerning income that the department deems necessary. (b) A self-employed person who has elected coverage may withdraw from coverage within thirty days after the end of the three-year period of coverage, or at other times as the director may prescribe by rule, by filing written notice with the director. The withdrawal shall take effect no sooner than thirty days after filing the notice. § -14 Family and medical leave insurance program. (a) By January 1, 2027, the department shall establish and administer a family and medical leave insurance program and begin collecting contributions as specified in this chapter. By January 1, 2028, the department shall begin receiving claims and paying family and medical leave insurance benefits as specified in this chapter. (b) The department shall establish reasonable procedures and forms for filing claims for benefits under this chapter and shall specify the necessary supporting documentation to support a claim for benefits, including any documentation required from a health care provider for proof of a serious health condition and any documentation required by the department to meet the eligibility requirements for family leave. (c) The department shall notify the employer within five business days of a claim being filed pursuant to this chapter. (d) The department shall use information sharing and integration technology to facilitate the disclosure of relevant information or records so long as the covered individual consents to the disclosure as required under state law. (e) Information contained in the files and records pertaining to a covered individual under this chapter shall be confidential and not open to public inspection, other than to public employees in the performance of their official duties; provided that the individual or an authorized representative of an individual may review the records or receive specific information from the records upon the presentation of the individual's signed authorization. (f) The director shall adopt rules as necessary to implement this chapter. § -15 Federal income tax. If the Internal Revenue Service determines that family and medical leave insurance benefits under this chapter are subject to federal income tax, the department shall advise a covered individual filing a new claim for family and medical leave insurance benefits, at the time of filing the claim, that: (1) The Internal Revenue Service has determined that benefits are subject to federal income tax; (2) Requirements exist pertaining to estimated tax payments; (3) The individual may elect to have federal income tax deducted and withheld from the individual's payment of benefits in the amount specified in the Internal Revenue Code of 1986, as amended; and (4) The individual is permitted to change a previously elected withholding status. § -16 Family and medical leave trust fund. (a) There is established in the treasury of the State as a trust fund, separate and apart from all public moneys or funds of the State, a family and medical leave trust fund, which shall be administered by the department exclusively for the purposes of this chapter. All contributions pursuant to this chapter shall be paid into the fund and all benefits payable pursuant to this chapter shall be paid from the fund. All moneys in the fund shall be mingled and undivided. (b) Whenever in the judgment of the director of finance there shall be in the trust fund an amount of funds in excess of that amount deemed by the director of finance to be sufficient to meet the current expenditures properly payable therefrom, the director of finance shall have full power to invest, reinvest, manage, contract, or sell or exchange investments acquired with the excess funds in the manner prescribed by law. (c) On January 1, 2026, or as soon as possible thereafter, the director of finance shall transfer $ from the general fund to the family and medical leave trust fund for the purpose of defraying expenses incurred by the department, including hiring and employing personnel to perform functions relating to the establishment and administration of the family and medical leave trust fund, before the family and medical leave trust fund receives payroll contributions. (d) No later than December 31, 2029, the department shall repay the loan of $ received pursuant to subsection (c). § -17 Reports. Beginning January 1, 2029, the department shall report to the legislature by April 1 of each year on projected and actual program participation in the family and medical leave insurance program and include the criteria listed in section -2(a)(2), gender of beneficiary, premium rates, fund balances, outreach efforts, and, for leaves taken under section -2(a)(2)(B), family members for whom leave was taken to provide care. § -18 Public education. The department shall conduct a public education campaign to inform employees and employers regarding the availability of family and medical leave insurance benefits. Outreach information shall be available in English, Ilocano, Chuukese, Marshallese, Tagalog, Spanish, and other languages spoken by more than five per cent of the students in the department of education's English learner program. § -19 Sharing technology. The department may use state data collection and technology to the extent possible and to integrate the program with existing state policies. § -20 Severability. If any provision of this chapter or its application to any person or circumstance is held invalid, the invalidity shall not affect other provisions or applications of the chapter which can be given effect without the invalid provision or application, and to this end the provisions of this chapter are declared to be severable." SECTION 2. The department shall adopt all rules necessary for implementation of this part by January 1, 2026. PART II SECTION 3. Chapter 392, Hawaii Revised Statutes, is repealed. SECTION 4. Subpart B of part VI of chapter 378, Hawaii Revised Statutes, is repealed. PART III SECTION 5. Section 41D-2, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows: "(a) The comptroller, through the risk manager, shall: (1) Have discretion to purchase casualty insurance for the State or state agencies, including those employees of the State who, in the comptroller's discretion, may be at risk and shall be responsible for the acquisition of all casualty insurance; (2) Have discretion to purchase property insurance for the State or state agencies and shall acquire all property insurance; (3) Direct and manage all risk management and insurance programs of the State, except for employee benefits insurance and workers' compensation insurance programs or as otherwise provided in chapters 87A, 88, 383 to 386A, [392,] and 393; (4) Consult with state agencies to determine what property, casualty, and other insurance policies are presently in force or are sought by the state agencies and to make determinations about whether to continue subscribing to insurance policies. In the event that the risk manager's determination is not satisfactory to the state agency, the state agency may have the risk manager's decision reviewed by the comptroller. In this case, the comptroller's decision shall be final; (5) Consolidate and combine state insurance coverages, and purchase excess insurance when, in the comptroller's discretion, it is appropriate to do so; (6) Acquire risk management, investigative, claims adjustment, actuarial, and other services, except attorney's services, as may be required for the sound administration of this chapter; provided that a broker submitting a proposal in response to a fixed fee solicitation by the comptroller pursuant to this subsection and the broker's performance of the activities in accordance with the proposal shall not constitute a violation of sections 431:10-218, 431:13‑102, and 431:13-103; (7) Gather from all state agencies and maintain data regarding the State's risks and casualty, property, and fidelity losses; (8) In conjunction with the attorney general and as otherwise provided by this chapter, compromise or settle claims cognizable under chapter 662; (9) Provide technical services in risk management and insurance to state agencies; (10) Be authorized to establish a captive insurance company pursuant to article 19 of chapter 431 to effectuate the purposes of this chapter; and (11) Do all other things appropriate to the development of sound risk management practices and policies for the State." SECTION 6. Section 103D-310, Hawaii Revised Statutes, is amended by amending subsection (c) to read as follows: "(c) All offerors, upon award of contract, shall comply with all laws governing entities doing business in the State, including chapters 237, 383, 386, [392,] and 393. Offerors shall produce documents to the procuring officer to demonstrate compliance with this subsection. Any offeror making a false affirmation or certification under this subsection shall be suspended from further offerings or awards pursuant to section 103D-702. The procuring officer shall verify compliance with this subsection for all contracts awarded pursuant to sections 103D-302, 103D-303, 103D-304, and 103D-306, and for contracts and procurements of $2,500 or more awarded pursuant to section 103D-305; provided that the attorney general may waive the requirements of this subsection for contracts for legal services if the attorney general certifies in writing that comparable legal services are not available in this State." SECTION 7. Section 393-3, Hawaii Revised Statutes, is amended by amending the definition of "wages" to read as follows: ""Wages" means all remuneration for services from whatever source, including commissions, bonuses, and tips and gratuities paid directly to any individual by a customer of the individual's employer, and the cash value of all remuneration in any medium other than cash. The director may issue [regulations] rules for the reasonable determination of the cash value of remuneration in any medium other than cash. If the employee does not account to the employee's employer for the tips and gratuities received and is engaged in an occupation in which the employee customarily and regularly receives more than $20 a month in tips, the combined amount received by the employee from the employee's employer and from tips shall be deemed to be at least equal to the wage required by chapter 387 or a greater sum as determined by regulation of the director. "Wages" does not include the amount of any payment specified in section 383-11 [or 392-22] or chapter 386." SECTION 8. Section 398-4, Hawaii Revised Statutes, is amended by amending subsection (c) to read as follows: "(c) An employer who provides sick leave for employees shall permit an employee to use the employee's accrued and available sick leave for purposes of this chapter; provided that an employee shall not use more than ten days per year for this purpose, unless an express provision of a valid collective bargaining agreement authorizes the use of more than ten days of sick leave for family leave purposes. [Nothing in this section shall require an employer to diminish an employee's accrued and available sick leave below the amount required pursuant to section 392-41; provided that any sick leave in excess of the minimum statutory equivalent for temporary disability benefits as determined by the department may be used for purposes of this chapter.]" SECTION 9. Section 431:10-244, Hawaii Revised Statutes, is amended to read as follows: "§431:10-244 Filing procedure for contracts approved by commissioner. Each insurance contract requiring approval by the commissioner pursuant to this code[, section 392-48,] or section 386-124 and each contract certified by the insurer to be in conformity with this code shall be accompanied by a $20 fee payable to the commissioner, which shall be deposited into the commissioner's education and training fund." PART IV SECTION 10. Chapter 378, Hawaii Revised Statutes, is amended by amending the title of part VI, subpart C, to read as follows: "[C.] B. REASONABLE ACCOMMODATIONS IN THE WORKPLACE" SECTION 11. Section 378-71, Hawaii Revised Statutes, is amended as follows: 1. By repealing the definition of "child". [""Child" means an individual who is a biological, adopted, or foster son or daughter; a stepchild; or a legal ward of an employee."] 2. By repealing the definition of "course of conduct". [""Course of conduct" means acts over any period of time of repeatedly maintaining a visual or physical proximity to a person or conveying verbal or written threats, including threats conveyed through electronic communications or threats implied by conduct."] 3. By repealing the definition of "electronic communications". [""Electronic communications" includes communications via telephone, mobile phone, computer, e-mail, video recorder, fax machine, telex, or pager."] 4. By repealing the definition of "health care provider". [""Health care provider" means a physician as defined under section 386-1."] PART V SECTION 12. If any provision of this Act, or the application thereof to any person or circumstance, is held invalid, the invalidity does not affect other provisions or applications of the Act that can be given effect without the invalid provision or application, and to this end the provisions of this Act are severable. SECTION 13. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored. SECTION 14. This Act shall take effect on July 1, 3000; provided that parts II, III, and IV shall take effect on the earlier of January 1, 2028, or the start of the department of labor and industrial relations receiving claims and paying family and medical leave insurance benefits as specified under chapter . |
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| 47 | + | SECTION 1. The legislature finds that Hawaii's working families are not adequately supported during times of caregiving and illness. According to a 2018 report commissioned by Aloha United Way, entitled "ALICE (Asset Limited, Income Constrained, Employed): a Study of Financial Hardship in Hawaii", forty-two per cent of families in Hawaii are living paycheck to paycheck. While the federal Family and Medical Leave Act of 1993 allows twelve weeks of unpaid leave to employees who have worked at a business that employs fifty or more employees, the majority of Hawaii's workforce cannot afford to take unpaid leave to care for a new child or attend to the needs of a family member having a serious health condition. Hawaii law offers a modest four‑weeks of unpaid leave only to employees of large employers having more than one hundred employees. The legislature further finds that according to the Hawaii Children's Action Network, seven in ten keiki have either their married parents, or their single parent, in the workforce, leaving them with no full-time caregiver. Yet, mothers who have paid leave are thirty-nine per cent less likely to receive public assistance after the birth of a child than those without. Furthermore, paid family leave is associated with a twenty per cent decrease in infant mortality, greater health equity among different racial and socioeconomic groups, and increases in worker retention and loyalty. An actuarial analysis conducted in 2016 found that the annual cost to cover sixteen weeks of leave for a Hawaii worker making $48,000 would be around fifty‑eight dollars, averaging out to cost about $1.11 per week. The legislature additionally finds that in 2018, only seventeen per cent of workers in the United States had access to paid family leave through their employers. Women, as primary caregivers of infants, children, and elderly parents, are disproportionately affected by the absence of paid family and medical leave. According to AARP Hawaii, there are approximately 157,000 unpaid family caregivers in the State. Hawaii has one of the fastest growing populations over the age of sixty-five in the nation; from 2020 to 2030, the percentage of people aged sixty-five and over is expected to increase from 19.1 per cent to 22.5 per cent of the State's population. Nearly one-third of those who need but do not have access to family leave will need the time off to care for an ill spouse or elderly parent. The legislature additionally finds that the coronavirus disease 2019 (COVID-19) spread globally and was declared a pandemic by the World Health Organization on March 11, 2020. Upon reaching Hawaii's shores, COVID-19 became a public health emergency that infected thousands of people, overwhelmed hospital capacities, created medical supply shortages, and claimed the lives of numerous Hawaii residents. Enacting a comprehensive family leave program would allow employees whose family members are impacted by serious health conditions to provide adequate care for their loved ones. The purpose of this Act is to ensure that employees in Hawaii are provided family leave insurance benefits when they need to provide care for their families. SECTION 2. Chapter 398, Hawaii Revised Statutes, is amended by adding ten new sections to be appropriately designated and to read as follows: "§398-A Family leave insurance program; established. (a) The department shall establish and administer a family leave insurance program and pay family leave insurance benefits as specified in this chapter. (b) The department shall establish procedures and forms for filing claims for family leave insurance benefits. (c) The information collected and the files and records retained regarding a covered individual pursuant to this chapter, including the existence of a claim, shall be confidential and shall not be open to inspection; provided that: (1) An employee who applied for family leave insurance benefits or that employee's representative, upon presentation of an authorization signed by the employee to the department, shall be allowed to review any information, files, and records obtained by the department; (2) A public employee acting within the scope of the public employee's official duties shall be permitted to review the minimum necessary information, files, and records to accomplish the public employee's purpose for reviewing the information, files, and records; and (3) The department shall notify an employee's employer that an employee filed a claim pursuant to this chapter within days after the claim has been filed. §398-B Notice to employers. (a) An employer may require a covered individual to give the employer written notice at least thirty days before commencing a period of family leave. (b) A covered individual may commence leave without thirty days' advance notice if the leave is not foreseeable, as in circumstances including but not limited to: (1) An unexpected serious health condition of the employee or a family member of the employee; or (2) A premature birth, unexpected adoption, or unexpected foster placement by or with the employee. (c) If a covered individual commences leave without thirty days' advance notice, as described under subsection (b), the employee shall give oral notice to the employer within twenty‑four hours after the commencement of leave and shall provide written notice of leave to the employer within three days after the commencement of leave. §398-C Employment protection; retaliation prohibited. After returning to work after a period of family leave, a covered individual shall be entitled to be restored to the position of employment held by the employee when the leave commenced, if that position still exists, without regard to whether the employer filled the position with a replacement worker during the period of leave. If the position held by the employee at the time the leave commenced no longer exists, the employee shall be entitled to be restored to any available equivalent position having equivalent employment benefits, pay, and other terms and conditions of employment. §398-D Family leave insurance trust fund; family leave insurance benefits. (a) There is established an insurance trust fund to be known as the family leave insurance trust fund. The family leave insurance trust fund shall be used to provide a covered individual with up to sixteen weeks per calendar year of paid family leave. (b) The family leave insurance trust fund shall consist of employer and employee contributions based on the employee's average weekly wage, interest earned on moneys in the fund; income earned by the fund; and dividends, refunds, rate credits, and other returns received by the fund, including funds collected pursuant to section 398-I. The rate of the contribution shall be in accordance with the contribution rate to the trust fund for disability benefits established under section 392-61. The department of labor and industrial relations shall collect the contributions from the employee and employer, which shall be shared at one half the cost of the premiums per employee. (c) The family leave insurance trust fund shall be under the control of and administered by the department. All sums contributed or paid from any source to the family leave insurance trust fund, and all assets of the fund including all interest and earnings, shall be held by the department for the exclusive use and benefit of the employee‑beneficiaries. The fund shall be used to finance benefits, administration, outreach, and education or study of family leave insurance. The fund shall not be subject to appropriation for any other purpose. §398-E Eligibility for payment of benefits. Family leave insurance benefits shall be payable to: (1) An employed covered individual; or (2) An unemployed covered individual who: (A) Because of birth, adoption, or placement through foster care, is caring for a new child during the first year after the birth, adoption, or placement; (B) Is caring for a family member having a serious health condition; (C) Is caring for a qualifying service member who is the employee's next of kin; or (D) Has a qualifying exigency. §398-F Report to the legislature. The department shall submit a report to the legislature no later than twenty days prior to the convening of each regular session, beginning with the regular session of 2025, on any outreach efforts conducted pursuant to section 398-G and projected and actual program participation, including the percentage of covered individuals who received family leave insurance benefits, premium rates, and fund balances under the family leave insurance program established pursuant to this chapter. §398-G Outreach and education. The department shall conduct a public outreach and education campaign to inform employees and employers of the availability of family leave insurance benefits. The department may use a portion of the funds collected in a given year for the family leave insurance program to pay for the public outreach and education campaign; provided that the department shall use no more than per cent per year or $ per year, whichever is greater, for the public outreach and education campaign. Outreach information shall be available in English and other languages spoken within the State. §398-H Coverage of self-employed. (a) A self-employed person, including a sole proprietor, partner, or joint venture partner, may elect coverage under this chapter by filing a notice of election in writing with the director, as required by the department, as follows: (1) For an initial period of not less than three years; and (2) Following the initial coverage period, not less than one additional year of coverage; provided that the election shall take effect on the date of filing the notice. (b) A self-employed person who has elected coverage pursuant to subsection (a) may withdraw from coverage within thirty days after the end of the initial period of coverage, or at other times as the director may prescribe by rule, by filing with the director a notice in writing, as required by the department. The withdrawal shall take effect no sooner than thirty days after filing the notice. §398-I Wage withholding. (a) An employer may deduct and withhold contributions from each employee of up to one‑half of the cost of providing family leave insurance premiums, and the employer shall provide for the remaining cost over the amount of contributions of the employer's employees. (b) If there is a dispute between the employee and the employer relating to the withholding of wages as contributions for family leave insurance benefits, either party may file with the director a petition for determination of the amount to be withheld. The matter shall be determined by an officer of the department. If either an employer or employee is dissatisfied with the department's determination, the aggrieved party may appeal the petition for redetermination pursuant to the procedure under part V of chapter 392. §398-J Weekly benefit amount. (a) The weekly benefit amount provided under this chapter shall be calculated as follows: (1) If the individual's average weekly wage is fifty per cent or less of the state average weekly wage, the individual's weekly benefit shall be ninety per cent of the individual's average weekly wage; (2) If the individual's average weekly wage is more than fifty per cent and less than one hundred per cent of the state average weekly wage, the individual's weekly benefit shall be seventy-five per cent of the individual's average weekly wage; or (3) If the individual's average weekly wage is one hundred per cent or more of the state average weekly wage, the individual's weekly benefit shall be fifty per cent of the individual's average weekly wage. (b) In no case shall the weekly benefit amount exceed the state average weekly wage." SECTION 3. Section 398-1, Hawaii Revised Statutes, is amended as follows: 1. By adding eight new definitions to be appropriately inserted and to read: ""Covered individual" means any person who: (1) Is an employee or is currently unemployed but has been an employee within the last twenty-six weeks; (2) Meets the requirements set forth in section 392-25 and the requirements in the rules implemented pursuant to this chapter; and (3) Submits an application for family leave insurance benefits to the department. "Family leave insurance benefits" means the benefits provided pursuant to this chapter. "Family member" means a child; parent; person to whom the covered individual is legally married under the laws of any state; biological, foster, hanai, or adopted sibling; the spouse or reciprocal beneficiary of a sibling; or a reciprocal beneficiary. "Next of kin" means a person having the following relationship to a covered individual: (1) The spouse or reciprocal beneficiary; (2) An adult child; (3) Either parent; (4) An adult sibling; (5) A grandparent; and (6) A guardian at the time of death. "Qualifying exigency" means a circumstance arising from a notice of deployment of a service member received within seven days of deployment, or mandatory attendance of military events or related activities by the covered individual or the covered individual's family member that requires the covered individual to: (1) Provide child care or attend school activities, if due directly or indirectly to the active duty call or active duty status of a service member; (2) Make financial or legal arrangements for a service member's absence or as a result of the service member's absence; (3) Attend counseling provided by someone other than a health care provider if the need for counseling arises from the active duty call or active duty of a service member; or (4) Spend up to five days with a service member for each instance of short-term, temporary rest and recuperation leave during a period of deployment. "Qualifying service member" means an individual who meets specific criteria established by a program or organization to be eligible for certain benefits or services related to military service. "Reciprocal beneficiary" has the same meaning as the term "reciprocal beneficiaries" as defined in section 572C‑3. "Spouse" has the same meaning as defined in section 431:10A-116.5." 2. By amending the definition of "child" to read: ""Child" means an individual who is a biological, adopted, hanai, or foster son or daughter; a stepchild; [or] a legal ward of [an employee.] a covered individual; a child of a reciprocal beneficiary; a grandchild; or a child of a covered individual who stands in loco parentis." 3. By amending the definition of "employer" to read: ""Employer" means any individual or organization, including the State, any of its political subdivisions, any instrumentality of the State or its political subdivisions, any partnership, association, trust, estate, joint stock company, insurance company, or corporation, whether domestic or foreign, or receiver or trustee in bankruptcy, or the legal representative of a deceased person, who employs one [hundred] or more employees for each working day during each of twenty or more calendar weeks in the current or preceding calendar year." 4. By amending the definition of "parent" to read: ""Parent" means a biological, foster, hanai or adoptive parent, a parent-in-law, a stepparent, a legal guardian, a grandparent, [or] a grandparent-in-law[.], a parent or grandparent of a reciprocal beneficiary, or a person who stands in loco parentis for a minor child." SECTION 4. Section 398-3, Hawaii Revised Statutes, is amended as follows: 1. By amending subsection (a) to read: "(a) [An employee] A covered individual shall be entitled to a total of [four] sixteen weeks of family leave during any calendar year: [(1) Upon the birth of a child of the employee or the adoption of a child; or (2) To care for the employee's child, spouse, reciprocal beneficiary, sibling, grandchild, or parent with a serious health condition.] (1) To care for the covered individual's child within twelve months of the child's birth, foster placement with the covered individual, or placement for adoption with the covered individual; (2) To care for a covered individual's family member with a serious health condition; (3) To care for a qualifying service member who is the covered individual's next of kin; or (4) Due to a qualifying exigency." 2. By amending subsection (e) to read: "(e) Nothing in this chapter shall entitle [an employee] a covered individual to more than a total of [four] sixteen weeks of leave in any twelve-month period." SECTION 5. Section 398-4, Hawaii Revised Statutes, is amended to read as follows: "§398-4 [Unpaid leave permitted;] Paid family leave; relationship to [paid leave; sick] other leave. (a) Pursuant to section 398-3, [an employee] a covered individual shall be entitled to [four] sixteen weeks of family leave. [The family leave shall consist of unpaid leave, paid leave, or a combination of paid and unpaid leave. If an employer provides paid family leave for fewer than four weeks, the additional period of leave added to attain the four-week total may be unpaid.] An employer who provides paid family leave beyond what is required by this chapter may require that the leave run concurrently with the sixteen weeks required under this chapter; provided that the employer shall not require the leave to be applied against accrued sick or vacation hours. (b) Except as otherwise provided in subsection (c), [an employee] a covered individual may elect to substitute any of the [employee's] covered individual's accrued paid leaves, including but not limited to vacation, personal, or family leave, for any part of the [four-week] sixteen-week period in subsection (a). (c) [An employer who provides sick leave for employees shall permit an employee to use the employee's accrued and available sick leave for purposes of this chapter; provided that an employee shall not use more than ten days per year for this purpose, unless an express provision of a valid collective bargaining agreement authorizes the use of more than ten days of sick leave for family leave purposes. Nothing in this section shall require an employer to diminish an employee's accrued and available sick leave below the amount required pursuant to section 392-41; provided that any sick leave in excess of the minimum statutory equivalent for temporary disability benefits as determined by the department may be used for purposes of this chapter.] No assignment, pledge, or encumbrance of any right to benefits that is or may become due or payable under this chapter shall be valid; and any right to benefits shall be exempt from levy, execution, attachment, garnishment, or any other remedy whatsoever provided for the collection of debt. No waiver of any exemption in this section shall be valid. (d) Nothing in this chapter shall prevent a biological mother who is receiving temporary disability benefits for recovery from childbirth from applying for and receiving paid family leave for the purpose of caregiving and bonding with her child after the temporary disability time period has lapsed. For family leave purposes, there shall be no waiting period for benefits to begin. (e) Benefits under the Family and Medical Leave Act of 1993 shall run concurrently with benefits under this chapter." SECTION 6. Section 398-21, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows: "(a) Any individual claiming to be aggrieved by an alleged unlawful act under this chapter, including the denial of family leave insurance benefits, may file with the department a verified complaint in writing." SECTION 7. Section 398-23, Hawaii Revised Statutes, is amended by amending subsection (d) to read as follows: "(d) If the department determines after investigation that this chapter has been violated[,] by an employer, the department shall inform the employer and endeavor to remedy the violation by informal methods, such as conference or conciliation. If the department determines that family leave insurance benefits have been wrongfully withheld, the department shall order immediate payment to the covered individual found to be entitled to those benefits." SECTION 8. Section 398-24, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows: "(a) Upon appeal by a complainant or the employer, the order issued by the department shall be subject to a de novo review by a hearings officer appointed by the director." SECTION 9. Section 398-26, Hawaii Revised Statutes, is amended by amending subsection (b) to read as follows: "(b) Relief under this section may include: (1) The amount of any family leave insurance benefits, wages, salary, employment benefits, or other compensation denied or lost to the employee by reason of the violation; or (2) In a case in which family leave insurance benefits, wages, salary, employment benefits, or other compensation have not been denied or lost to the employee, any actual monetary losses sustained by the employee as a direct result of the violation, such as the cost of providing care, up to a sum equal to four weeks of wages or salary for the employee." SECTION 10. Section 398-2, Hawaii Revised Statutes, is repealed. ["[§398-2] Inapplicability. The rights provided under this chapter shall not apply to employees of an employer with fewer than one hundred employees."] SECTION 11. The department of labor and industrial relations shall adopt rules pursuant to chapter 91, Hawaii Revised Statutes, to implement the purposes of this Act. SECTION 12. There is appropriated out of the general revenues of the State of Hawaii the sum of $ or so much thereof as may be necessary for fiscal year 2024-2025 for the purpose of administering the family leave insurance program, including the oversight of payroll deductions and administrative processes and payment to covered individuals. The sums appropriated shall be expended by the department of labor and industrial relations for the purposes of this Act. SECTION 13. There is appropriated out of the general revenues of the State of Hawaii the sum of $ or so much thereof as may be necessary for fiscal year 2024-2025 for the establishment of full-time equivalent ( .0 FTE) positions for the establishment and operation of the family leave insurance program. The sum appropriated shall be expended by the department of labor and industrial relations for the purposes of this Act. SECTION 14. In accordance with section 9 of article VII of the Hawaii State Constitution and sections 37-91 and 37-93, Hawaii Revised Statutes, the legislature has determined that the appropriations contained in Act 164, Regular Session of 2023, and this Act will cause the state general fund expenditure ceiling for fiscal year 2024-2025 to be exceeded by $ or per cent. This current declaration takes into account general fund appropriations authorized for fiscal year 2024-2025 in Act 164, Regular Session of 2023, and this Act only. The reasons for exceeding the general fund expenditure ceiling are that: (1) The appropriations made in this Act are necessary to serve the public interest; and (2) The appropriations made in this Act meet the needs addressed by this Act. SECTION 15. In codifying the new sections added by section 2 of this Act, the revisor of statutes shall substitute appropriate section numbers for the letters used in designating the new sections in this Act. SECTION 16. This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun before its effective date. SECTION 17. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored. SECTION 18. This Act shall take effect on July 1, 2050. |
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