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THE SENATE |
S.B. NO. |
3316 |
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THIRTY-FIRST LEGISLATURE, 2022 |
S.D. 1 |
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STATE OF HAWAII |
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A BILL FOR AN ACT
RELATING TO FAMILY LEAVE.
BE IT
ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:
SECTION 1. Chapter 392, Hawaii Revised Statutes, is amended by amending its title to read as follows:
"FAMILY LEAVE AND TEMPORARY DISABILITY INSURANCE"
SECTION 2. Section 392-1, Hawaii Revised Statutes, is amended to read as follows:
"[[]§392-1[]]
Short title. This chapter
shall be known as the "Hawaii Family Leave and
Temporary Disability Insurance Law"."
SECTION 3. Section 392-2, Hawaii Revised Statutes, is amended to read as follows:
"[[]§392-2[]] Findings and purpose.
[A] The legislature finds that Hawaii's
working families do not receive adequate caregiving support while a family
member suffers from a serious illness or other health condition.
The legislature also finds that each
year, 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], the
worker's sickness or accident can be expected to cause a disability [of] that extends more than one [week's
duration.] week. 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 only a period of one workweek
or less[; more]. 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] corresponds with [the
extension of] the duration of [the] a family member's serious illness or the worker's 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 caring for a family member's serious health condition or
by disabling nonoccupational
sickness or accident [where the disability is temporary in nature and
exceeds the period of] that results in the worker losing more than
one workweek. This legislation is
designed not to impede the growth of voluntary plans which afford additional
protection.
The purpose of
this chapter is to ensure that employees in Hawaii are provided with:
(1) Leave of absence to care for family
members while receiving reasonable compensation for wage loss; and
(2) Reasonable compensation for wage
loss during the employees' non-work-related temporary disability.
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 as follows:
1. By adding six new definitions to be appropriately inserted and to read:
""Child" means an individual's
biological, adopted, step, or foster son or daughter; or legal ward.
"Family leave" means leave
of absence taken by an individual in current employment for the purposes set
forth in section 392‑21(a).
"Family member" means an individual's spouse, reciprocal beneficiary, child, parent, sibling, grandparent, grandparent-in-law, or grandchild.
"Parent" means an
individual's biological, adoptive, step, or foster father or mother; a father-
or mother-in-law; or a legal guardian.
"Serious health condition"
means a physical or mental condition that warrants care by another 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.
"Sibling" means an individual's biological, adopted, step, or foster brother or sister."
2. By amending the definitions of "benefit year" and "contributions" to read:
""Benefit year" with
respect to any individual means the one-year period beginning with the first
day of the first week of family leave or disability with respect to
which the individual first files a valid claim for [temporary disability]
benefits[.] under this chapter.
A subsequent benefit year is the one-year period following a preceding
benefit year, beginning either with the first:
(1) Day of the first
week of family leave or disability with respect to which the individual
files a subsequent claim for [temporary disability] benefits[;] under
this chapter; or
(2) Workday following
the expiration of the preceding benefit year if a serious health condition
of the individual's family member or the individual's disability for which [temporary
disability] benefits are payable during the last week of the preceding
benefit year continues and the individual is eligible for further benefit
payments.
"Contributions" means the
amounts of money authorized by this chapter to be withheld from employees'
wages for the payment of [temporary] family leave benefits or
disability benefits."
3. By amending the definition of "weekly benefit amount" to read:
"Weekly benefit amount" means the amount payable under this chapter for a period of continuous family leave or disability throughout a calendar week. If the period of family leave or disability or the initial or terminal portion thereof is shorter than a calendar week, the benefit amount payable for that portion shall be the weekly benefit amount multiplied by a factor consisting of a quotient having the number of workdays lost during the portion of the week for the enumerator and the number of regular workdays of the employee during a calendar week for the denominator."
SECTION 5. Section 392-6, Hawaii Revised Statutes, is amended to read as follows:
"§392-6 Individual in current employment. "Individual in current employment" means:
(1) An individual who performed regular service in employment [immediately
or not longer than] within two weeks prior to family leave or
the onset of the sickness or to the accident causing disability, and who
would have continued in or resumed employment except for [such] the
family leave or disability.
(2) An individual who
performed regular service in employment [immediately or not longer than]
within two weeks prior to becoming totally disabled from performing the
duties of [her] employment because of pregnancy or termination of
pregnancy and who would have continued in or resumed [such] employment
except for [such] the disability."
SECTION 6. Chapter 392, part II, Hawaii Revised Statutes, is amended by amending its title to read as follows:
"PART II. FAMILY LEAVE AND
TEMPORARY DISABILITY BENEFITS"
SECTION 7. Section 392-21, Hawaii Revised Statutes, is amended to read as follows:
"§392-21 Establishment of family
leave, family leave benefits, and temporary disability benefits. (a) Any individual in current employment is entitled
to family leave and family leave benefits in the manner and amount provided in
this chapter:
(1) During the first year after birth of
the individual's child, adoption of a child by the individual, or placement of
a child with the individual through foster care, to care for the new child; provided
that entitlement to family leave benefits shall not be duplicative of
disability benefits for disability caused by termination of pregnancy; or
(2) To care for the individual's family member with a serious health condition.
(b) Any individual in current employment who suffers disability resulting from accident, sickness, pregnancy, termination of pregnancy, or organ donation, 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.
[(b)] (c) It is the policy of this chapter that [the]:
(1) 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 family
leave or disability; [that an]
(2) An employee
shall not be entitled to family leave benefits or 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]
(3) An employee is entitled to benefits only for periods of family leave or disability during which, but for the family leave or 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 family leave or a disability that commenced while the employee was in current employment, nor shall it be applied to deny benefits under this chapter if a period of family leave or disability that commenced while the employee was in current employment continues into a period during which the employee would earn wages but for the family leave or disability."
SECTION 8. Section 392-23, Hawaii Revised Statutes, is amended to read as follows:
"[[]§392-23[]]
Duration of benefit payments.
[Temporary] (a) Family leave benefits and temporary disability benefits
shall be payable for any period of family leave or
disability following the expiration of the waiting period required in
section 392-24.
(b) The duration of benefit payments shall not
exceed [twenty-six]:
(1) Twenty-six
weeks for any period of disability [or] during any benefit year;
(2) Eight weeks for
any period of family leave taken pursuant to section 392-21(a)(1) during the
first year after birth of the individual's child, adoption of a child by the
individual, or placement of a child with the individual through foster care;
and
(3) Eight weeks for any period of family leave taken pursuant to section 392-21(a)(2) during any benefit year."
SECTION 9. Section 392-24, Hawaii Revised Statutes, is amended to read as follows:
"[[]§392-24[]] Waiting period. No [temporary disability] benefits shall
be payable during the first seven consecutive days of any period of family leave or disability. Consecutive periods of family leave or
disability due to the same or related cause and not separated by an interval of
more than two weeks shall be considered as a single period of family leave or disability."
SECTION 10. Section 392-26, Hawaii Revised Statutes, is amended to read as follows:
"§392-26 Care by physician,
advanced practice registered nurse, or equivalent required. (a) An
individual shall be ineligible to receive [temporary disability]
benefits with respect to any period during which the family
member claiming a serious health condition or the individual claiming temporary disability is not under the
care of a person duly licensed to practice medicine, surgery, dentistry,
chiropractic, osteopathy, or naturopathic medicine, or an advanced practice
registered nurse, who shall certify, in the form and manner specified by rule
of the director, the serious health condition of the
family member or disability of the claimant, the probable duration [of
the disability,] thereof, and [such] other medical facts
within the person's knowledge as required by rule.
(b)
This section shall not apply to a family member or an individual
who, pursuant to the teachings, faith, or belief of any group, depends for
healing upon prayer or other spiritual means[. In]; provided that in that case,
the serious health condition or disability, the probable duration
thereof, and any other pertinent facts required to be certified by regulation
of the director shall be certified, in the form and manner specified by [the
regulation,] rule by the director, by a duly authorized or
accredited practitioner of [such] the group.
(c)
The proof of a serious health condition or temporary
disability duly certified by a person licensed to practice medicine,
surgery, dentistry, chiropractic, osteopathy, or naturopathic medicine, [or]
an advanced practice registered nurse, or an authorized or accredited
practitioner of any group that depends for healing upon prayer or other
spiritual means shall be submitted by the certifying person to the [disabled] employee within seven working days
after the date on which the family member or employee
was examined and found to have a serious health condition
or disabled[.], as the case may be. 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 11. 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 family leave benefits or temporary disability benefits:
(1) For any period of family leave or disability during which the
individual 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] the disqualification.
(2) If the director
finds that the individual has knowingly made a false statement or representation
of a fact or knowingly failed to disclose a material fact [in order] 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 family leave or 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 family
leave or 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 the employee's wages for
the partial day's work did not equal or exceed the prorated family leave
benefits or disability benefits to which the employee is entitled. The amount of the benefit payable is 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) Unless the claim for family leave benefits or temporary disability benefits is filed within ninety days after the commencement of the period of family leave or disability or as soon thereafter as is reasonably possible."
SECTION 12. Section 392-28, Hawaii Revised Statutes, is amended to read as follows:
"§392-28 Duplication of benefits
not permitted. No [temporary
disability] benefits shall be payable for any period of family leave or
disability for which the employee is entitled to receive:
(1) Weekly benefits under the Employment Security Law or similar laws of this State or of any other state or of the United States, or under any family leave or temporary disability benefits law of any other state or of the United States except as provided in section 392-66.
(2) Weekly disability
insurance benefits under title 42 United States Code [Annotated []section[]]
423.
(3) Weekly benefits
for total disability under the Workers' Compensation Law of this State or any
other state or of the United States, except benefits for permanent partial or
permanent total disability previously incurred.
If the claimant does not receive benefits under [such] the
workers' compensation law and the claimant's entitlement to such benefits is
seriously disputed, the employee, if otherwise eligible, shall receive
temporary disability benefits under this chapter, but any insurer or employer
or the trust fund for family leave and disability benefits providing [such]
the benefits shall be subrogated, as hereinafter provided, to the
employee's right to benefits under the workers' compensation law for the period
of disability for which the employee received benefits under this chapter to
the extent of the benefits so received.
(4) Indemnity payments
for wage loss under any applicable employers' liability law of this State, or
of any other state or of the United States.
If an employee has received benefits under this chapter for a period of family
leave or disability for which the employee is entitled to [such]
indemnity payments, any insurer or employer or the trust fund for family
leave and disability benefits providing [such] the benefits
shall be subrogated to the employee's right to [such] indemnity payments
in the amount of the benefits paid under this chapter as hereinafter
provided."
SECTION 13. Chapter 392, part III, Hawaii Revised Statutes, is amended by amending its title to read as follows:
"PART III. PROVISION FOR FAMILY LEAVE AND TEMPORARY DISABILITY INSURANCE BENEFITS"
SECTION 14. Section 392-41, Hawaii Revised Statutes, is amended to read as follows:
"§392-41 Provision for payment of benefits. (a) An employer or an association of employers shall secure family leave benefits and temporary disability benefits for their employees in one or more of the following ways:
(1) By insuring and keeping
insured the payment of family leave benefits and temporary disability
benefits with any stock, mutual, reciprocal or other insurer authorized to
transact the business of [disability] insurance for family leave,
temporary disability, or both, in the State;
(2) By depositing and maintaining with the state director of finance, securities, or the bond of a surety company authorized to transact business in the State, as are satisfactory to the director securing the payment by the employer of family leave benefits and temporary disability benefits according to the terms of this chapter;
(3) Upon furnishing satisfactory proof to the director of the employer's or its solvency and financial ability to pay the family leave benefits and temporary disability benefits herein provided, no insurance or security or surety bond shall be required, and the employer shall make payments directly to the employer's employees, as they may become entitled to receive the same under the terms and conditions of this chapter;
(4) By a plan[,]
or agreement entitling employees to cash benefits or wages during a
period of family leave or disability[, in
existence on the effective date of this chapter.
(A) If
the employees of an employer or any class or classes of such employees are entitled
to receive disability benefits under a plan or agreement which remains in
effect on January 1, 1970, the employer, subject to the requirements of
this section, shall be relieved of responsibility for making provision for
benefit payments required under this chapter until the earliest date, determined
by the director for the purposes of this chapter, upon which the employer has
the right to discontinue the plan or agreement or to discontinue the employer's
contributions toward the cost of the temporary disability benefits. Any plan or agreement referred to in this
subparagraph may be extended, with or without modification, by agreement or
collective bargaining between the employer or employers or an association of
employers and an association of employees; provided the benefits under the plan
or agreement, as extended or modified, are found by the director to be at least
as favorable as the disability benefits required by this chapter.
(B) Any
other plan or agreement in existence on January 1, 1970, which the
employer may, by the employer's sole act, terminate at any time, or with
respect to which the employer is not obligated to continue for any period to
make contributions, may be accepted by the director as satisfying the
obligation to provide for the payment of benefits under this chapter if the plan
or agreement provides benefits at least as favorable as the disability benefits
required by this chapter and does not require contributions of any employee or
of any class or classes of employees in excess of the amount authorized in
section 392-43, except by agreement and provided the contribution is reasonably
related to the value of the benefits as determined by the director. The director may require the employer to
enter into an agreement in writing with the director that until the employer
shall have filed written notice with the director of the employer's election to
terminate such plan or agreement or to discontinue making necessary
contributions toward the cost of providing benefits under the plan or
agreement, the employer will continue to provide for the payment of the
disability benefits under the plan or agreement. Any plan or agreement referred to in this
subparagraph may be extended, with or without modification; provided the
benefits under the plan or agreement, as extended or modified, are found by the
director to be at least as favorable as the disability benefits required by
this chapter;] accepted by the director as satisfying the obligations to
provide the payment of benefits under this chapter; or
(5) By a new plan or
agreement[. On or after
January 1, 1970, a new plan or agreement] with an insurer [may be]
accepted by the director as satisfying the obligation to provide for the
payment of benefits under this chapter [if]; provided that the
plan or agreement [provides]:
(A) Provides
benefits at least as favorable as the leave benefits and
disability benefits required by this chapter; [and does]
(B) Does
not require contributions of any employee or of any class or classes of employees
in excess of the amount authorized in section 392-43, except by agreement;
and [provided the]
(C) The contribution is reasonably related to the value of the benefits as determined by the director.
Any [such] plan or
agreement under this paragraph shall continue until written notice [is
filed with the director] of intention to terminate the plan or agreement[,]
is filed with the director, and any modification of the plan or
agreement shall be subject to the written approval of the director.
(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].
(c) If any plan or agreement authorized under subsection (a)(4) or (5) covers less than all of the employees of a covered employer, the requirements of this chapter shall apply with respect to the employer's remaining employees not covered under the plan or agreement.
(d)
As used in subsection (a)[(4) or](5), "benefits at least as
favorable as the leave benefits and disability
benefits required by this chapter" means the family
leave benefits or temporary disability benefits under any plan or
agreement, in whole or in part, whose component parts (waiting period for
illness, waiting period for accident, duration of benefits, and percentage of
wage loss replaced) add in total to cash benefits or wages that are determined by
the director to be at least as favorable as the leave
benefits and disability benefits required by this chapter. The insurance commissioner shall establish a
set of tables showing the relative value of different types of cash benefits
and wages to assist the director in determining whether the cash benefits and
wages under a plan are at least as favorable as the family leave benefits and
temporary disability benefits required by this chapter.
(e) Any decision of the director rendered pursuant to this section with respect to the amount of security required, refusing to permit security to be given or refusing to accept a plan or agreement as satisfying the obligation to provide for the payment of benefits under this chapter shall be subject to review on appeal in conformity with the provisions of this chapter.
(f)
In order to provide the coverage required by this chapter for employers
otherwise unable to obtain or provide [such] coverage, the insurance commissioner
may, after consultation with the insurers licensed to transact the business of family
leave and disability insurance in this State, approve a reasonable plan or
plans for the equitable apportionment among [such] the insurers
of employer applicants for [such] insurance who are in good faith entitled
to but are unable to procure [such] insurance through ordinary methods
and, when [such] a plan has been approved, all [such] insurers
shall subscribe thereto and participate therein; provided, however, that the
commissioner shall not, for insurance issued or in connection with any [such]
plan or plans, require or allow the use of premium rates which are either
inadequate or excessive in relation to the benefits to be provided. Any employer applying for [such]
insurance or any insured under [such] the plan and any insurer
affected may appeal to the commissioner from any ruling or decision of the
manager or committee designated to operate [such] the plan. All orders of the commissioner in connection
with any [such] plan pursuant to this section shall be subject to
judicial review as provided in chapter 91.
(g)
All insurers shall, in a form prescribed by the director,
notify employer applicants who are unable to procure the required insurance through
ordinary methods, the availability of the plan described in [[]subsection[]]
(f) [above]."
SECTION 15. Section 392-42, Hawaii Revised Statutes, is amended to read as follows:
"§392-42 Notice of insurance. If payment of family
leave benefits or disability benefits is provided for in whole or in
part by insurance pursuant to section 392-41(a)(1), (4), or (5), the employer
or insurer shall forthwith file with the director,
in a form prescribed by the director, a notice of the
employer's or insurer's insurance together with a statement of benefits provided
by the policy. If an employer or insurer
fails to file the notice of insurance within thirty days after purchase of
insurance, the director may levy a penalty of not more than [$10] $50 for each delinquent notice,
unless good cause for failure to file can be shown by the employer or
insurer."
SECTION 16. Section 392-43, Hawaii Revised Statutes, is amended to read as follows:
"§392-43 Authority to withhold
contributions, rate of contribution, maximum weekly wage base. (a)
Subject to the limitation set forth in subsection (b), an
employer may deduct and withhold contributions[,] from each employee of up to one-half the cost but not more than .5 per
cent of the weekly wages earned by the employee in employment, and the
employer shall provide for the balance of the cost of providing family leave benefits and temporary disability
benefits under this chapter over the amount of contributions of the employer's
employees. Unless a different rule is prescribed
by regulation of the director, the withholding period shall be equal to the pay
period of the respective employee.
(b) Weekly wages for the purposes of this section shall not include:
(1) Wages earned by an
employee in employment during any payroll period unless, during the fifty-two
weeks immediately preceding [such] the payroll period, the
employee has earned wages of at least $400 and has been in employment for at
least fourteen weeks during each of which the employee has received remuneration
in any form for twenty or more hours; and
(2) Remuneration in
excess of one fifty-second of the average annual wage in the State as
determined for the preceding year pursuant to section 383-61(b) multiplied by
the factor 1.21, which amount the director shall cause to be published annually
[prior to] before the first day of January following the
determination.
(c) The contributions of the employees deducted and withheld from their wages by their employer shall be held in a separate fund or be paid to insurance carriers as premiums, for the purpose of providing benefits required by this chapter.
(d)
The director shall have authority to prescribe by regulation the reports
and information necessary to determine the cost of providing [temporary disability] benefits under this
chapter, especially in the case of employers or employer associations providing
[such] the benefits by means of self-insurance, and to determine
the procedures for the determination of [such] the cost.
(e) An employee from whose wages amounts greater than those authorized by this chapter have been withheld by the employee's employer shall be entitled to a refund or credit of the excess as prescribed by regulation of the director.
(f)
The contributions of employees deducted and withheld in amounts greater
than those authorized by this chapter, shall be deposited in the trust fund for
family leave and disability benefits if [such]
the employees are no longer with the employer and cannot be
located. A refund of the excess shall be
paid from the trust fund for family leave and disability benefits to the
employees when they are located or if [such] the employees remain
unlocated for a period of two years from the date of deposit, [such] the
moneys shall become a part of the trust fund.
(g)
If an employer fails to provide coverage for the employer's employees
after deducting and withholding contributions from the employer's employees as
prescribed by this chapter, the employer shall deposit [such] the
contributions in the [[]trust fund for family leave and
disability benefits[]]."
SECTION 17. Section 392-45, Hawaii Revised Statutes, is amended to read as follows:
"§392-45 Subrogation rights if
employee entitled to workers' compensation benefits or indemnity under
employers' liability acts. (a) If an individual has received [temporary
disability] benefits under this chapter during a period of the
individual's disability for which benefits for any disability under the
Workers' Compensation Law of this State or of any other state or of the United
States are subsequently awarded or accepted in any agreement or compromise, the
employer, the association of employers, the insurer, or the trust fund for family leave and disability benefits, as the
case may be, providing [such temporary disability] the benefits
shall be subrogated to the individual's right to [such] the benefits
in the amount of the benefits paid under this chapter.
In the event more than one employer
or insurer have subrogation rights to the employee's workers' compensation
benefits, [such] the benefits shall be divided proportionately
among the employers or insurers according to the amount of benefits each
employer or insurer paid under this chapter.
Should the subrogated amount of either one or both employers or insurers
total less than the amount of benefits that [such] the employers
or insurers paid under this chapter, neither the employee nor the trust fund
for family leave and disability benefits nor any other source shall be
required to make up the difference.
To protect its subrogation rights to
benefits payable under the Workers' Compensation Law of this State, the
employer, the association of employers, the insurer, or the trust fund for family
leave and disability benefits, providing [temporary disability] the
benefits shall file a claim with the division of workers' compensation in the
department and notify the insurer for workers' compensation or the employer, if
self-insured, of its claim and thereupon the employer, the association of
employers, the insurer, or the trust fund for family leave and
disability benefits, providing [temporary disability] the benefits
shall have a lien against the amounts payable as family leave benefits
pursuant to this chapter or benefits for disability under the Workers'
Compensation Law in the amount of the benefits paid under this chapter during the
period for which benefits [for disability] under this chapter or the
Workers' Compensation Law have been accepted or awarded as payable. The agreement or award shall include a
provision setting forth the existence and amount of [such] the lien.
(b)
If an individual has received benefits under this chapter during a period
of family leave or disability for which the individual is entitled to
receive indemnity payments for wage loss under any applicable employers'
liability law of this State or of any other state or of the United States, the
employer, the association of employers, the insurer, or the trust fund for family
leave and disability benefits, providing [temporary disability]
benefits shall be subrogated to the individual's right to [such] the
indemnity in the amount of the benefits paid under this chapter and may assert
its subrogation rights in any manner appropriate under such acts or any rule of
law."
SECTION 18. Section 392-46, Hawaii Revised Statutes, is amended to read as follows:
"§392-46 Subrogation rights
against third parties. If any
individual who has received benefits under this chapter is entitled to recover
damages from a third person who is responsible for the sickness or accident
causing the serious health condition of a family member
or the employee's disability, the employer, the association of
employers, the insurer, or the trust fund for family leave
and disability benefits, providing [disability] the benefits
shall be subrogated to, and have a lien upon, the rights of the individual
against the third party to the extent that the damages include wage loss during
the period of family leave or disability for
which [temporary disability] benefits were received in the amount of [such]
the benefits.
If the individual commences an action
against [such] the third party, the individual shall notify the
individual's employer, or the director if the individual is unemployed, of the
action and the court in which it is pending.
The employer, the association of employers, the insurer, or the trust
fund for family leave and disability benefits, providing family leave
benefits or disability benefits may join as party plaintiff or claim a lien
on the amount of any judgment recovered by the individual in [such] the
action to the extent of its subrogation rights.
If the individual does not commence the action within nine months after
the commencement of the serious health condition, or
sickness, or the date of the accident causing the family leave or disability, the employer, the
association of employers, the insurer, or the trust fund for family leave and disability benefits, providing family leave benefits or temporary disability
benefits may commence [such] the action, but the individual shall
be entitled to join the action and be entitled to any surplus over the amount
to which the employers, the association of employers, the insurer, or the trust
fund for family leave and disability benefits is subrogated."
SECTION 19. Section 392-48, Hawaii Revised Statutes, is amended to read as follows:
"[[]§392-48[]] The
insurance contract. Every policy of
insurance issued by an insurer of an employer pursuant to this chapter which
covers the liability of the employer for family
leave, temporary disability [benefits],
or both, shall cover the entire liability of the employer to the
employer's employees covered by the policy or contract, and also shall contain
a provision setting forth the right of the employees to enforce in their own
names either by filing a separate claim or by making the insurer a party to the
original claim, the liability of the insurer in whole or in part for the
payment of [the disability] benefits. Payment in whole or in part of family leave benefits or disability benefits by
either the employer or the insurer shall, to the extent thereof, be a bar to
the recovery against the other of the amount so paid.
All insurance policies shall be approved by the insurance commissioner of the State."
SECTION 20. Chapter 392, part IV, Hawaii Revised Statutes, is amended by amending its title to read as follows:
"PART IV.
TRUST FUND FOR FAMILY LEAVE AND DISABILITY
BENEFITS"
SECTION 21. Section 392-61, Hawaii Revised Statutes, is amended to read as follows:
"§392-61 Establishment of trust
fund for family leave and disability benefits. There is established in the treasury of the
State, separate and apart from all public moneys or funds of the State, a trust
fund for family leave and disability benefits
which shall be administered by the director exclusively for the purposes of this
chapter[; and for the establishment and maintenance of a family leave data
collection system under section 398-9.5.]
All contributions pursuant to this part shall be paid into the fund and
all benefits payable under this part shall be paid from the fund. The fund shall consist of[[]:[]]
(1) All contributions collected pursuant to this part, together with any interest thereon;
(2) All fines and penalties for the fund pursuant to this chapter;
(3) All moneys collected by way of subrogation;
(4) Interest earned on any moneys in the fund;
(5) Any property or securities acquired through the use of moneys belonging to the fund;
(6) All earnings of [such]
the property and securities; and
(7) All other moneys received for the fund from any source."
SECTION 22. Section 392-65, Hawaii Revised Statutes, is amended to read as follows:
"§392-65 [Temporary disability
benefits] Benefits to be paid from the trust fund for family leave and disability benefits; recovery
of [disability] benefits. [Temporary]
Family leave benefits and temporary disability benefits shall be paid
from the trust fund for family leave and disability
benefits to individuals who become disabled when unemployed and who subsequently
become ineligible for benefits under chapter 383. Benefits shall also be paid from this fund to
an employee who is entitled to receive family leave benefits or temporary
disability benefits but cannot receive [such] the benefits
because of the bankruptcy of the employee's employer or because the employee's
employer is not in compliance with this chapter. Benefits paid from the trust fund to [such]
the employee may be recovered from the employee's bankrupt or
noncomplying employer. The director shall
institute administrative and legal actions, as provided in section 392-47, to
effect recovery of [such] the benefits."
SECTION 23. Section 392-67, Hawaii Revised Statutes, is amended to read as follows:
"§392-67 Assessments for the
trust fund for family leave and disability
benefits. [(a) Each employer shall, from July 1, 1969,
to December 31, 1969, contribute to the establishment of the trust fund
for disability benefits at the rate of .2 per cent of covered wages as defined
in section 392-43. The employer shall
pay such contributions to the director for a given month on or before the
thirtieth day of the next succeeding month.
(b)] When the balance of the
trust fund for family leave and disability
benefits falls below $500,000 as of December 31 of any year after 1969, a
levy shall be assessed and collected in the next calendar year from insurers of
employers insured under section 392-41 and from all other employers not insured
under section 392-41.
Each year the director shall determine
the amount of the levy to be paid by each insurer or employer and shall give
notice of the levy to each [such] insurer or employer on or before
May 1 of the year in which the levy is assessed. The amount of the levy shall be paid on or
before June 30 following notification.
The amount of the levy against each
insurer or employer shall be determined as the product of the wages paid by the
employer multiplied by a factor which is the ratio of the amount by which the
balance in the [[]trust fund for family leave
and disability benefits[]] was less than $500,000 on the
preceding December 31 to total covered wages paid by all employers. For the purposes of this paragraph,
"covered wages" means wages paid by employers during the preceding
calendar year but not including wages paid to any employee in excess of the limit
contained in section 392-43(b)."
SECTION 24. Section 392-68, Hawaii Revised Statutes, is amended to read as follows:
"[[]§392-68[]]
Failure to pay assessments.
If an employer or insurer fails to pay the assessment required by section
392‑67[(a) or section 392-67(b)] within thirty days after the end
of the month or quarter for which payment was due, the director shall levy a
penalty of at least $250 but no more than ten per cent of the assessment due
against the employer or insurer, unless the nonpayment is excused by the
director after a showing by the employer or insurer that the payment of the
assessment could not be made on the date prescribed therefor owing to
conditions over which the employer or insurer had no control and the employer
or insurer forthwith complies."
SECTION 25. Section 398A-3, Hawaii Revised Statutes, is amended by amending subsection (e) to read as follows:
"(e) Notwithstanding any other provision to the
contrary, leave provided pursuant to this section shall not be taken concurrently
with any leave taken pursuant to the federal Family and Medical Leave Act of
1993 (29 U.S.C. 2601 et seq.) or [chapter 398.] family leave pursuant
to chapter 392."
SECTION 27. Sections 392-47, 392-52, 392-62, 392-63, 392‑64, 392-65, 392-67, 392-69, 392-72(a), 392-78(d), and 392‑92, Hawaii Revised Statutes, are amended by substituting the phrase "trust fund for family leave and disability benefits" wherever the phrase "trust fund for disability benefits" appears, as the context requires.
SECTION 28. Chapter 398, Hawaii Revised Statutes, is repealed.
SECTION 29. 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 2022-2023 to fund the personnel and resources, including the hiring of full time equivalent ( FTE) positions, to implement the Hawaii family leave program pursuant to this Act.
The sum appropriated shall be expended by the department of labor and industrial relations for the purposes of this Act.
SECTION 30. This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun before its effective date.
SECTION 31. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.
SECTION 32. This Act shall take effect upon July 1, 2022; provided that sections 1 through 28 of this Act shall take effect on July 1, 2024.
Report Title:
Paid Family Leave; Temporary Disability Insurance; Insurance Benefits; Employer Based Insurance Program; Appropriation
Description:
Provides employees with up to eight weeks of paid family leave during the first year after birth of the individual's child, adoption of a child by the individual, or placement of a child with the individual through foster care, and eight weeks of paid family leave to care for the individual's family member with a serious health condition during any benefit year, paid through an employer-based private insurance program currently used to provide for temporary disability benefits. Repeals chapter 398, Hawaii Revised Statutes. Appropriates funds to the Department of Labor and Industrial Relations. Sections 1-28 effective 7/1/2024. (SD1)
The summary description
of legislation appearing on this page is for informational purposes only and is
not legislation or evidence of legislative intent.