SB2044

SECTION 1. The joint legislative committee on family caregiving was created to develop a comprehensive public policy to strengthen support for family caregivers. The committee's mandate was expanded in 2007 to require the committee to explore the provision of wage replacement benefits to employees who need time off from work to care for a family member with a serious health condition.

In furtherance of this mandate, the committee held informational hearings on the subject and contracted with the University of Hawaii, school of social work, to conduct a comprehensive assessment of the needs of care recipients aged sixty or older with physical or cognitive disabilities and the needs of their family caregivers. In addition to providing the demographics of care recipients and their family caregivers, researchers were asked to focus on the impact family caregiving has on employment, in general, to determine, among other things, whether the relationship warrants wage replacement benefits.

The preliminary results of the needs assessment substantiate the critical role that family caregiving has in Hawaii's health and long‑term care system. According to the needs assessment, over one quarter of Hawaii's households contain at least one individual providing informal, unpaid care for an adult aged sixty or older with physical or cognitive disabilities. This percentage is expected to increase. That is because projections indicate that by 2020, more than one in four individuals will be aged sixty or older, and an individual's need for personal care assistance due to physical, sensory, cognitive, and self‑care disabilities increases with age.

The legislature finds that given the preliminary needs assessment data, wage replacement benefits are an appropriate and productive means of supporting family caregivers. The data indicates that the average age of family caregivers is fifty‑four years old, well below the age of retirement. Over fifty‑five per cent of the family caregivers are employed, and of these, over twenty‑six per cent indicate that their employment is affected by their caregiving responsibilities. Reduction in work hours was an often‑cited effect, followed by turning down promotions and taking leaves of absence. Nearly all of the family caregivers stated that they frequently rearrange their work schedules, and over seventy‑seven per cent take time off from work, to deal with caregiving responsibilities. The most startling effect is that over ninety‑six per cent of the unemployed family caregivers indicated that they retired to deal with family caregiving responsibilities.

Over the years, Hawaii has experienced a labor shortage that threatens to debilitate some areas of the economy. According to U.S. Census Bureau projections, one of six workers in Hawaii is at least fifty‑five years old and nearing retirement. With the current unemployment rate below three per cent, Hawaii employers need to do more than increase salaries to retain employees. More emphasis should be placed on accommodating employee's family needs in a way that encourages and enables an employee to participate in the workforce.

When polled for the needs assessment, most family caregivers indicated that no family caregiving benefits were offered by their employers. Overwhelmingly, family caregivers are in favor of public policies to support family caregiving. Women are significantly more likely than men to support public policies, which closely reflects the estimate that over seventy‑three per cent of family caregivers are women.

The current temporary disability insurance law provides an eligible employee with up to twenty‑six weeks of temporary disability benefits if the employee suffers a qualifying disability that prevents the employee from working. Employers are responsible for providing temporary disability insurance coverage to eligible employees, but may deduct and withhold contributions from each employee of one‑half the cost of providing the coverage as long as the contributions do not exceed .5 per cent of the weekly wages earned by the employee.

The purpose of this Act is to amend the temporary disability insurance law to permit an eligible employee to collect up to four weeks of temporary disability insurance benefit payments to care for a family member with a serious health condition. An employee will be required to provide proof that the employee's family member has a serious health condition pursuant to section 398‑1, Hawaii Revised Statutes. "Serious health condition" is currently defined under section 398‑1, Hawaii Revised Statutes as a physical or mental condition that warrants the participation of the employee to provide care during the period of treatment or supervision by a health care provider, and: (1) involves inpatient care in a hospital, hospice, or residential health care facility; or (2) requires continuing treatment or continuing supervision by a health care provider.

SECTION 2. Chapter 398, Hawaii Revised Statutes, is amended by adding a new section to be appropriately designated and to read as follows:

"§398‑ Conformity with other laws. If any provision of this chapter, or the application thereof to any person or circumstance conflicts with the provision of temporary disability insurance benefits to an employee when the employee's family member suffers a disability pursuant to chapter 392, the provisions of chapter 392 shall control."

SECTION 3. Section 392-2, Hawaii Revised Statutes, is amended to read as follows:

"[[]§392-2[]] Findings and purpose. (a) A large portion of the labor force of this State annually is disabled from pursuing gainful employment by reason of nonoccupational sickness or accident and as a result suffers serious loss of income. In approximately ten per cent of the cases such sickness or accident can be expected to cause disability of more than one week's duration. More than two-fifths of the employees in private employment have either no fixed legal protection against wage loss from disabling nonoccupational sickness or accident, or only protection for a period of one workweek or less; more than one-third of the workers covered by formal sick leave plans are not protected against disability extending beyond two workweeks. Since the hardship for workers and their families mounts with the extension of the duration of the disability from whatever cause, there is a need to fill the existing gaps in protection and to provide benefits to individuals in current employment that will afford to them reasonable compensation for wage loss caused by disabling nonoccupational sickness or accident where the disability is temporary in nature and exceeds the period of one workweek. This legislation is designed not to impede the growth of voluntary plans which afford additional protection.

(b) In addition, a large portion of the labor force of this State are providing care to family members with serious health conditions. Their employment is often affected by their caregiving responsibilities. Family caregivers may need to reduce hours, take time off from work, or rearrange their work schedules to balance their family caregiving responsibilities with their employment. Some family caregivers leave or retire from employment because a lack of benefits makes it difficult to balance the conflicting demands. The State's economy depends upon a robust labor force. It is in the public's interest to support and encourage family caregivers' participation in the labor force by providing reasonable compensation for wage loss caused by the need to care for a family member with a serious health condition.

(c) This chapter shall be liberally construed in the light of the stated reasons for its enactment and its declared purpose."

SECTION 4. Section 392-3, Hawaii Revised Statutes, is amended by:

1. Amending the definition of "disability" to read as follows:

""Disability" means [~~total~~]:

(1) Total inability of an employee to perform the duties of the employee's employment caused by sickness, pregnancy, termination of pregnancy, or accident other than a work injury as defined in section 386-3[.]; or

(2) With regard to an employee's family member, a serious health condition, as that term is defined under section 398‑1."

2. By adding a new definition to be appropriately inserted and to read as follows:

""Family member" includes a child and a parent, as those terms are defined under section 398‑1, a spouse, and a reciprocal beneficiary."

SECTION 5. Section 392-7, Hawaii Revised Statutes, is amended to read as follows:

"[[]§392-7[]] Average weekly wage. The "average weekly wage" for the purpose of computing the weekly benefit amount shall be based upon the wages that the employee would receive from the employee's employer except for the employee's disability[.] or the disability of the employee's family member. In the case of salaried employees the "average weekly wage" shall be the weekly salary of the employee in the last week prior to the commencement of disability."

SECTION 6. Section 392-21, Hawaii Revised Statutes, is amended to read as follows:

"§392-21 Establishment of temporary disability benefits. (a) [~~Any~~] An individual in current employment [~~who~~] shall be entitled to receive temporary disability insurance benefits in the amount and manner provided in this chapter if:

(1) The individual suffers disability resulting from accident, sickness, pregnancy, or termination of pregnancy, except accident or disease connected with or resulting from employment as defined in section 386-3 or any other applicable workers' compensation law[~~, shall be entitled to receive temporary disability benefits in the amount and manner provided in this chapter.~~]; or

(2) The individual's family member suffers a disability.

(b) It is the policy of this chapter that the computation and distribution of benefit payments shall correspond to the greatest extent feasible, to the employee's wage loss due to the employee's or the employee's family member's disability; that an employee shall not be entitled to temporary disability benefits for periods of disability during which the employee would not have earned wages from employment according to the schedule of operations of the employee's employer[,]; and that an employee is entitled to benefits only for periods of disability during which, but for the disability, the employee would have earned wages from employment. This policy, however, shall not be applied to terminate the benefits of an employee who is receiving benefits under this chapter for a disability that commenced while the employee was in current employment, nor shall it be applied to deny benefits under this chapter if a disability that commenced while the employee was in current employment continues into a period during which the employee would earn wages but for the disability."

SECTION 7. Section 392-23, Hawaii Revised Statutes, is amended to read as follows:

"[[]§392-23[]] Duration of benefit payments. (a) Temporary disability benefits shall be payable for any period of disability following the expiration of the waiting period required in section 392-24[.]; provided that the duration of temporary disability benefits payments for the period of disability of an employee's family member shall not exceed four weeks.

The total duration of temporary disability benefit payments shall not exceed twenty-six weeks for any period of disability or during any benefit year."

SECTION 8. Section 392-26, Hawaii Revised Statutes, is amended to read as follows:

"(a) An individual shall be ineligible to receive temporary disability benefits with respect to any period during which the individual or the individual's family member, as the case may be, is not under the care of a person duly licensed to practice medicine, surgery, dentistry, chiropractic, osteopathy, or naturopathy, who shall certify, in the form and manner specified by [~~regulation~~] rule of the director, the disability of the [~~claimant,~~] employee or the employee's family member, the probable duration [~~thereof,~~] of the disability, and [~~such~~] other medical facts within the person's knowledge as required by [~~regulation.~~] rule.

(b) This section shall not apply to an individual [~~who,~~] if the individual or the individual's family member, pursuant to the teachings, faith, or belief of any group, depends for healing upon prayer or other spiritual means. In that case the disability, the probable duration thereof, and any other pertinent facts required to be certified by [~~regulation~~] rule of the director shall be certified, in the form and manner specified by [~~the regulation,~~] rule, by a duly authorized or accredited practitioner of such group.

(c) The proof of disability duly certified by a person licensed to practice medicine, surgery, dentistry, chiropractic, osteopathy, or naturopathy, or an authorized or accredited practitioner of any group which depends for healing upon prayer or other spiritual means shall be submitted by [~~such~~] the certifying person to the [~~disabled employee~~] recipient designated by the department within seven working days after the date [~~on which~~] that the employee or the employee's family member was examined and found disabled. If the certifying person fails to submit the required proof within seven working days, the director, upon notification by the insurer, may levy a penalty of $25 for each delinquent certification where the certifying person fails to show good cause for the person's failure to file on time."

SECTION 9. Section 392-27, Hawaii Revised Statutes, is amended to read as follows:

"§392-27 Ineligibility in certain cases. An individual shall not be eligible to receive temporary disability benefits:

(1) For any period of disability during which the individual or, with regard to the disability of an individual's family member, the family member would be disqualified from receiving benefits under the Hawaii employment security law by reason of unemployment due to a stoppage of work existing because of a labor dispute for the duration of such disqualification[.];

(2) If the director finds that the individual or another person has knowingly made a false statement or representation of a fact or knowingly failed to disclose a material fact in order for the individual to obtain benefits under this chapter to which the individual is not otherwise entitled. The ineligibility shall be for a period determined by the director, but shall not exceed the period of disability with respect to which the false statement or representation was made or the nondisclosure occurred[.];

(3) For any period of disability due to wilfully and intentionally self-inflicted injury or to injury sustained in the commission of a criminal offense specified in title 37[.];

(4) For any day of disability during which the employee performed work for remuneration or profit, except [~~that,~~] if an employee returning to work suffers a relapse after performing work for less than a full day, the employee shall be paid benefits or be given waiting period credit[,]; provided that the employee's wages for the partial day's work did not equal or exceed the prorated disability benefits to which the employee is entitled. The amount of the benefit payable [is] shall be derived by subtracting the gross wages received for performing less than a full day's work, from the prorated disability benefits to which the employee is entitled[.];

(5) With regard to the disability of an individual's family member, any day of disability during which the family member performed work for remuneration or profit; or

[~~(5)~~] (6) Unless the claim for disability benefits is filed within ninety days after the commencement of the period of disability or as soon thereafter as is reasonably possible."

SECTION 10. Section 392-41, Hawaii Revised Statutes, is amended by amending subsection (b) to read as follows:

"(b) During any period in which any plan or agreement or extension or modification thereof authorized under subsection (a)(4) or (5) provides for payments of benefits under this chapter, the responsibility of the employer and the obligations and benefits of the employees shall be as provided in the plan or agreement or its extension or modification rather than as required under this chapter; provided that[:

~~(1)~~ ~~The~~] the employer or insurer has agreed in writing with the director to pay the assessments imposed by section 392-67[~~; and~~

~~(2)~~ If the benefits provided by the plan or agreement or extension or modification thereof include benefits falling within the definition of "sick leave" as defined in section 398-1, any amount in excess of the minimum statutory equivalent, as determined by the department, may be used for the purposes of chapter 398]."

SECTION 11. Section 392-66, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows:

"(a) An employee whose employment with a covered employer is terminated and who during a period of unemployment within twenty-six weeks immediately following [~~such~~] the termination of employment becomes ineligible for benefits claimed under chapter 383 solely because of the individual's disability commencing on or after January 1, 1970, and who on the day the individual's disability commences is not employed and is not then otherwise eligible for benefits under this chapter, shall be entitled to receive disability benefits as hereinafter provided for each week of [~~such~~] the individual's disability for which week the employee would have received unemployment insurance benefits if the employee were not so disabled."

SECTION 12. Section 392-72, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows:

"(a) If a person disputes the amount of benefits, paid under part III or part IV, or the denial of benefits, the claimant may file an appeal, in the form and manner prescribed by regulation of the director, at the office of the department in the county in which the claimant resides or in the county in which the claimant was employed prior to the [~~claimant's~~] disability, within twenty days after the date of payment of such disputed benefits or the denial thereof. Notice of the appeal shall be served upon the employer or insurer or the special fund for disability benefits in the form and manner prescribed by regulation of the director."

SECTION 13. Section 398-4, Hawaii Revised Statutes, is amended by amending subsections (b) and (c) to read as follows:

"(b) Except as otherwise provided in subsection (c), an employee may elect to substitute any of the employee's accrued paid leaves, including [~~but not limited to~~] vacation, personal, qualifying temporary disability insurance benefits, or family leave for any part of the four-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, unless the employee is entitled to receive temporary disability insurance benefits when the employee's family member suffers a disability pursuant to chapter 392, and the employer provides that temporary disability insurance benefit by a sick leave policy or sick leave benefit, 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 14. The department of labor and industrial relations shall submit an interim report to the legislature no later than twenty days prior to the convening of the 2009 regular session, and submit a final report to the legislature no later than twenty days prior to the convening of the 2010 regular session, on the implementation of this Act.

SECTION 15. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 16. This Act shall take effect on July 1, 2009; provided that section 14 of this Act shall take effect upon its approval.

INTRODUCED BY:	_____________________________

THE SENATE	S.B. NO.	2044
TWENTY-FOURTH LEGISLATURE, 2008
STATE OF HAWAII