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HOUSE OF REPRESENTATIVES |
H.B. NO. |
490 |
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THIRTY-SECOND LEGISLATURE, 2023 |
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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 for 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] that 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 person 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, adoptive, 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[.]; or
(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 having 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, a physician assistant, 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,] rules prescribed 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, a physician assistant, [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 for healing 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 be 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[.]; or
(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[.]; or
(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]; provided that the plan or agreement is 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, may 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, shall
not 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, shall notify employer applicants who are unable to procure the
required insurance through ordinary methods[,] of 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] rule
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] rule
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] If 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] that
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)] 392-67 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 2023-2024 and the same sum or so much thereof as may be necessary for fiscal year 2024-2025 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 sums 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 on July 1, 2023; provided that sections 1 through 28 of this Act shall take effect on July 1, 2025.
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INTRODUCED BY: |
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Report Title:
DLIR; Paid Family Leave; Temporary Disability Insurance; Insurance Benefits; Employer Based Insurance Program; Appropriation
Description:
Provides
employed individuals with up to 8 weeks of paid family leave during the 1st
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 8 weeks of paid family leave to care for the individual's family member
having a serious health condition during any benefit year, paid through an
employer-based private insurance program currently used to provide for
temporary disability benefits. Specifies
that private employers having fewer than 200 employees shall not be required to
provide family leave and family leave benefits.
Repeals chapter 398, HRS.
Appropriates funds to the Department of Labor and Industrial
Relations. Sections 1-28 effective
7/1/2025.
The summary description
of legislation appearing on this page is for informational purposes only and is
not legislation or evidence of legislative intent.