Bill Text: HI SB2350 | 2018 | Regular Session | Introduced
Bill Title: Relating To Family Leave.
Spectrum: Partisan Bill (Democrat 11-0)
Status: (Introduced - Dead) 2018-02-06 - The committee on LBR deferred the measure. [SB2350 Detail]
Download: Hawaii-2018-SB2350-Introduced.html
THE SENATE |
S.B. NO. |
2350 |
TWENTY-NINTH LEGISLATURE, 2018 |
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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. The legislature finds that Hawaii's working families are not adequately supported during times of caregiving and illness. While the Federal Family and Medical Leave Act of 1993 allows twelve weeks of unpaid leave to employees who have worked at a business that employs fifty or more employees, the majority of Hawaii's workforce cannot afford to take unpaid leave to care for a new child or attend to the needs of a family member with a serious health condition. Hawaii law, which offers a modest four-week extension of unpaid leave, is available only to employees of large employers having more than one hundred employees.
Only eleven per cent of workers in the United States have access to paid family leave through their employers. Women, as primary caregivers of infants, children, and elderly parents, are affected disproportionately by the unavailability of paid family and medical leave. In Hawaii, 247,000 people serve as family caregivers. Hawaii has the fastest growing population over the age of sixty five in the nation, and that number is expected to grow by eighty one per cent by the year 2030. Nearly a third of those who need but do not have access to family leave will need the time off to care for an ill spouse or elderly parent.
In short, most workers will need family leave at some point to care for family members, but very few can afford it.
The purpose of this Act is to ensure that employees in Hawaii are provided family leave insurance benefits during times when they need to provide care for their families.
SECTION 2. Chapter 398, Hawaii Revised Statutes, is amended by adding nine new sections to be appropriately designated and to read as follows:
"§398- Family leave insurance program. (a) The department shall establish and administer
a family leave insurance program and pay family leave insurance benefits as
specified in this chapter.
(b) The department shall
establish procedures and forms for filing claims for family leave insurance
benefits.
(c) The information
collected and the files and records retained about a covered individual pursuant
to this chapter, including the existence of a claim, shall be confidential and shall
not be open to inspection; provided that:
(1) An employee that applied for family leave insurance benefits or
that employee's representative, upon presentation of an authorization signed by
the employee to the department, shall be allowed to review any information,
files, and records obtained by the department;
(2) A public employee acting within the scope of the public
employee's official duties shall be permitted to review the minimum necessary
information, files, and records to accomplish the public employee's purpose for
reviewing the information, files, and records; and
(3) The department shall notify an employee's employer that an
employee filed a claim pursuant to this chapter within days
after the claim has been filed.
§398- Designation of a family member. (a)
Where an employer has not established a process for a covered individual
to designate the family member for whom the covered individual will be caring,
the covered individual shall designate the family member when submitting a
claim for benefits under this chapter.
(b)
An employer may establish a process by which a covered individual designates
a family member for whom the covered individual will be caring. The employer may require the covered
individual to comply with this process to be eligible for family leave
insurance benefits; provided that a covered individual shall be permitted to
designate a family member within thirty days of the covered individual becoming
eligible under this chapter, and shall be permitted to make or change a
designation at least once annually thereafter.
§398- Family leave insurance fund; family leave
insurance benefits. (a) There is established an insurance fund to be
known as the family leave insurance fund.
The family leave insurance fund shall be used to provide a covered
individual with up to sixteen weeks per calendar year of paid family leave.
(b) The family leave insurance
fund shall consist of employer and employee contributions based on the employee's
average weekly wage, interest earned, income, dividends, refunds, rate credits,
and other returns received by the fund. The
taxable rate of the contribution shall be in accordance with the contribution
rate to the temporary disability insurance fund.
(c) The family leave insurance
fund shall be under the control of and administered by the department. Any and all sums contributed or paid from any
source to the family leave fund, and all assets of the fund including any and
all interest and earnings of the same, shall be held by the department for the
exclusive use and benefit of the employee-beneficiaries. The fund shall be used to finance benefits,
administration, outreach, and education or study of family leave insurance. The fund shall not be subject to
appropriation for any other purpose.
§398- Eligibility for payment of benefits. Family leave insurance
benefits are payable to:
(a) An employed covered
individual; or
(b) An unemployed covered
individual who meets one of the following requirements:
(1) Because of birth, adoption, or placement through foster care, is
caring for a new child during the first year after the birth, adoption, or
placement;
(2) Is caring for a family member with a serious health condition;
(3) Is caring for a qualifying service member who is the employee's
next of kin; or
(4) Has a qualifying exigency.
§398- Report to the legislature. Beginning July 1, 2020, the department shall report to
the legislature no later than twenty days prior to the convening of each
regular session on outreach efforts, projected and actual program
participation, including the percentage of covered employees who received family
leave insurance benefits, the premium rates, and fund balances.
§398- Outreach and education. The department shall conduct a public
outreach and education campaign to inform employees and employers regarding the
availability of family leave insurance benefits. The department may use a portion of the funds
collected for the family leave insurance program in a given year to pay for the
public education program, but no more than per
cent per year or $ per year,
whichever is greater. Outreach
information shall be available in English and other languages spoken within the
State.
§398- Coverage of self-employed. (a) A self-employed person, including a sole
proprietor, partner, or joint venture partner, shall be permitted to elect
coverage under this chapter by filing a notice of election in writing with the
director, as required by the department, as follows:
(1) A self-employed person shall be permitted to elect coverage
under this chapter for an initial period of not less than three years; and
(2) A self-employed person shall be permitted to elect no less than
an additional year of coverage following the initial three-year period.
The
election shall take effect on the date of filing the notice.
(b) A self-employed person
who has elected coverage may withdraw from coverage within thirty days after
the end of the three-year period of coverage, or at other times as the director
may prescribe by rule, by filing a notice in writing with the director, as
required by the department. The withdrawal
shall take effect no sooner than thirty days after filing the notice.
§398- Wage withholding. (a) An employer may deduct
and withhold contributions from each employee of up to one-half the cost of
providing family leave insurance
benefits, and the employer shall provide for the remaining cost over the
amount of contributions of the employer's employees.
(b) If there is a dispute between the employee and the
employer relating to the withholding of wages as contributions for family leave insurance benefits,
either party may file a petition for determination of the amount to be withheld
with the director. The matter shall be
determined by the department.
If either an employer or employee is dissatisfied with the
department's determination, the aggrieved party shall be able to the petition
for redetermination and thereupon the petition shall be transferred to the
referee.
§398- Weekly benefit amount. (a) The weekly benefit amount shall be calculated
as follows:
(1) If the individual's average weekly wage is fifty per cent or
less of the state average weekly wage, the individual's weekly benefit is
ninety per cent of the individual's average weekly wage;
(2) If the individual's average weekly wage is more than fifty per
cent and less than one hundred per cent of the state average weekly wage, the
individual's weekly benefit is seventy-five per cent of the individual's
average weekly wage; or
(3) If the individual's average weekly wage is one hundred per cent
or more of the state average weekly wage, the individual's weekly benefit is
fifty per cent of the individual's average weekly wage.
(b) In no case shall the weekly benefit amount exceed the maximum weekly benefit amount of $1,000.00."
SECTION 3. Section 398-1, Hawaii Revised Statutes, is amended as follows:
1. By adding five new definitions to be appropriately inserted and to read:
""Covered
individual" means any person who:
(1) Is
an employee, or is currently unemployed but has been an employee within the
last twenty-six weeks;
(2) Meets
the requirements of this chapter and the requirements in the rules implemented
pursuant to this chapter; and
(3) Submits
an application for family leave insurance benefits to the department.
"Designated person"
means a family member designated by a covered individual for whom the covered
individual will provide care under this chapter if the family member has a
serious health condition.
"Family leave insurance
benefits" means the benefits provided pursuant to this chapter.
"Family member" means a
child, parent, person to whom the covered individual is legally married under
the laws of any state, a biological, foster, or adopted sibling, or the spouse
or reciprocal beneficiary of a sibling, or a reciprocal beneficiary.
"Qualifying exigency"
means a circumstance arising from a notice of deployment of a service member,
received within seven days of deployment, or mandatory attendance of military
events or related activities by the covered individual or the covered
individuals' family member that requires the covered individual to:
(1) Provide
child care or attendance of school activities, if due directly or
indirectly to the active duty call or active duty status of a service member;
(2) Make
financial or legal arrangements for a service member's absence or as a result
of the service member's absence;
(3) Attend
counseling provided by someone other than a health care provider if the need
for counseling arises from the active duty call or active duty of a service
member; or
(4) Spend
up to five days with a service member for each instance of short-term,
temporary rest and recuperation leave during a period of deployment."
2. By amending the definitions of "child", "employer", and "parent" to read:
""Child" means an individual who is a biological,
adopted, or foster son or daughter; a stepchild; [or] a legal ward of [an
employee.] a covered individual; a child of a reciprocal beneficiary; a
grandchild; or a child of a covered individual who stands in loco parentis.
"Employer" means any individual or organization,
including the State, any of its political subdivisions, any instrumentality of
the State or its political subdivisions, any partnership, association, trust,
estate, joint stock company, insurance company, or corporation, whether
domestic or foreign, or receiver or trustee in bankruptcy, or the legal
representative of a deceased person, who employs one [hundred] or more
employees for each working day during each of twenty or more calendar weeks in
the current or preceding calendar year.
"Parent" means a biological, foster, or adoptive
parent, a parent-in-law, a stepparent, a legal guardian, a grandparent, [or]
a grandparent-in-law[.], a parent or grandparent of a reciprocal
beneficiary, or a person who stands in loco parentis for a minor child."
SECTION 4. Section 398-3, Hawaii Revised Statutes, is amended as follows:
1. By amending subsection (a) to read:
"(a) [An employee] A covered individual
shall be entitled to a total of [four] sixteen weeks of family
leave during any calendar year:
[(1) Upon the birth
of a child of the employee or the adoption of a child; or
(2) To care for the
employee's child, spouse, reciprocal beneficiary, sibling, or parent with a
serious health condition.]
(1) To care for the
covered individual's child within twelve months of the child's birth, foster
placement with the covered individual, or placement for adoption with the
covered individual; or
(2) To care for a covered
individual's family member with a serious health condition."
2. By amending subsection (e) to read:
"(e) Nothing in this chapter shall entitle an
employee to more than a total of [four] sixteen weeks of leave in
any twelve-month period."
SECTION 5. Section 398-4, Hawaii Revised Statutes, is amended to read as follows:
"§398-4 [Unpaid leave] Leave
permitted; relationship to paid leave; sick leave. (a)
Pursuant to section 398-3, an employee shall be entitled to [four]
sixteen weeks of family leave. [The
family leave shall consist of unpaid leave, paid leave, or a combination of
paid and unpaid leave. If an employer
provides paid family leave for fewer than four weeks, the additional period of
leave added to attain the four-week total may be unpaid.] An employer
who provides paid family leave beyond what is required by this chapter may
require that the leave run concurrently with the sixteen weeks required under
this chapter, but shall not require the leave to be applied against accrued
sick or vacation hours.
(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, or family leave for any part of the [four-week] sixteen-week
period in subsection (a).
[(c) An employer who provides sick leave for
employees shall permit an employee to use the employee's accrued and available
sick leave for purposes of this chapter; provided that an employee shall not
use more than ten days per year for this purpose, unless an express provision
of a valid collective bargaining agreement authorizes the use of more than ten
days of sick leave for family leave purposes.
Nothing in this section shall require an employer to diminish an
employee's accrued and available sick leave below the amount required pursuant
to section 392-41; provided that any sick leave in excess of the minimum
statutory equivalent for temporary disability benefits as determined by the
department may be used for purposes of this chapter.]
(c) No assignment, pledge, or encumbrance of any
right to benefits that are or may become due or payable under this chapter
shall be valid; and the rights to benefits shall be exempt from levy,
execution, attachment, garnishment, or any other remedy whatsoever provided for
the collection of debt. No waiver of any
exemption in this section shall be valid.
(d) Nothing in this
chapter shall prevent a biological mother who is receiving temporary disability
benefits for recovery from childbirth from applying for and receiving paid
family leave for the purpose of caregiving and bonding with her child after the
temporary disability time period has lapsed. For family leave purposes, there shall be no
waiting period for benefits to begin.
(e) Benefits under the Family and Medical Leave Act of 1993 shall run concurrently with benefits under this chapter."
SECTION 6. Section 398-21, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows:
"(a) Any individual claiming to be aggrieved by an alleged unlawful act under this chapter, including the denial of family leave insurance benefits, may file with the department a verified complaint in writing."
SECTION 7. Section 398-23, Hawaii Revised Statutes, is amended by amending subsection (d) to read as follows:
"(d) If the department determines after
investigation that this chapter has been violated[,] by an employer,
the department shall inform the employer and endeavor to remedy the violation
by informal methods, such as conference or conciliation. If the
department determines that family medical leave insurance benefits have been
wrongfully withheld, the department shall order immediate payment to the
employee found to be entitled to those benefits."
SECTION 8. Section 398-24, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows:
"(a) Upon appeal by a complainant or by the
employer, the order issued by the department shall be subject to a de novo
review by a hearings officer appointed by the director."
SECTION 9. Section 398-26, Hawaii Revised Statutes, is amended by amending subsection (b) to read as follows:
"(b) Relief under this section may include:
(1) The amount of any family leave insurance benefits, wages, salary, employment benefits, or other compensation denied or lost to the employee by reason of the violation; or
(2) In a case in which family leave insurance benefits, wages, salary, employment benefits, or other compensation have not been denied or lost to the employee, any actual monetary losses sustained by the employee as a direct result of the violation, such as the cost of providing care, up to a sum equal to four weeks of wages or salary for the employee."
SECTION 10. Section 398-2, Hawaii Revised Statutes, is repealed.
["[§398-2]
Inapplicability. The
rights provided under this chapter shall not apply to employees of an employer
with fewer than one hundred employees."]
SECTION 11. The department shall establish rules pursuant to chapter 91 to implement the purposes of this Act.
SECTION 12. There is appropriated out of the general revenues of the State of Hawaii the sum of $300,000 or so much thereof as may be necessary for fiscal year 2018-2019 for the purpose of hiring and employing an administrator, administrative assistant, and an accountant to perform functions relating to the administration of the family leave trust fund, including the oversight of payroll deductions, administrative processes, and payment to eligible employees.
The sum appropriated shall be expended by the department of labor and industrial relations for the purposes of this Act.
SECTION 13. This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun before its effective date.
SECTION 14. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.
SECTION 15. This Act shall take effect on July 1, 2018.
INTRODUCED BY: |
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Report Title:
Family Leave; Insurance; Private; Appropriation
Description:
Establishes a family leave insurance program, which requires employees and employers to make contributions into an insurance fund to be used to provide employees with family leave insurance benefits in order to care for a designated person. Appropriates funds to implement the program.
The summary description
of legislation appearing on this page is for informational purposes only and is
not legislation or evidence of legislative intent.