HB 755: RELATING TO PAID FAMILY LEAVE.

A BILL FOR AN ACT

RELATING TO PAID FAMILY LEAVE.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:

PART I

     SECTION 1.  The Hawaii Revised Statutes is amended by adding a new chapter to be appropriately designated and to read as follows:

"Chapter

PAID FAMILY AND MEDICAL LEAVE

     §   ‑1  Definitions.  As used in this chapter, unless the context clearly requires otherwise:

     "Benefit year" means the one-year period beginning with the first day of the calendar week for which the individual files a valid claim for family leave insurance benefits and medical leave insurance benefits.  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 and medical leave with respect to which the individual files a subsequent claim for family leave insurance benefits and medical leave insurance benefits; or

     (2)  Workday following the expiration of the preceding benefit year if a need for family leave and medical leave for which family leave insurance benefits and medical leave insurance benefits are payable during the last week of the preceding benefit year continues and the individual is eligible for further benefit payments.

     "Covered individual" means:

     (1)  Any person who:

          (A)  Has been working for an employer for at least fourteen weeks during each of which the individual has received remuneration in any form and earned wages of at least $5,040, during the fifty-two weeks immediately prior to paid leave granted under this chapter; or

          (B)  Is self-employed, elects coverage, and meets the requirements of section    ‑13;

     (2)  Meets the administrative requirements outlined in this chapter and in rules adopted under this chapter; and

     (3)  Submits a claim.

     "Department" means the department of labor and industrial relations.

     "Designated person" means any individual related by blood or whose association with the covered individual is the equivalent of a family relationship.  A covered individual may choose one designated person per benefit year, and the designated person may be identified by the covered individual at the time the covered individual requests the leave or files a claim.

     "Director" means the director of labor and industrial relations.

     "Domestic partner" means a person at least eighteen years of age who:

     (1)  Is dependent upon the covered individual for support as shown by either unilateral dependence or mutual interdependence that is evidenced by a nexus of factors, including but not limited to:

          (A)  Common ownership of real or personal property;

          (B)  Common householding;

          (C)  Children in common;

          (D)  Signs of intent to marry;

          (E)  Shared budgeting; and

          (F)  The length of the personal relationship with the covered individual; or

     (2)  Has registered as the domestic partner of the covered individual with any registry of domestic partnerships maintained by the employer of either party, or in any state, county, city, town, or village in the United States.

     "Employee" includes any individual employed by an employer.

     "Employer" has the same meaning as defined in section 387‑1.  "Employer" includes the State or counties or any political subdivision thereof.

     "Family leave" means leave taken pursuant to section    ‑2(a).

     "Family leave insurance benefits" means the benefits provided under the terms of this chapter to a covered individual while the covered individual is on family leave.

     "Family member" means:

     (1)  A biological, adopted or foster child, stepchild or legal ward, a child of a domestic partner, or a child to whom the covered individual stands in loco parentis;

     (2)  A biological, adoptive or foster parent, stepparent or legal guardian of a covered individual or a covered individual's spouse or domestic partner or a person who stood in loco parentis when the covered individual or the covered individual's spouse or domestic partner was a minor child;

     (3)  A person to whom the covered individual is legally married under the laws of any state, or a domestic partner of a covered individual; or

     (4)  A grandparent, grandchild or sibling (whether a biological, adoptive, foster, or step relationship) of the covered individual, the covered individual's designated person, the covered individual's spouse or domestic partner, or the spouse or domestic partner of a covered individual's sibling.

     "Health care provider" means any person licensed under federal or state law to provide medical or emergency services, including but not limited to doctors, nurses, and emergency room personnel, or certified midwives.

     "Medical leave" means leave taken pursuant to section    ‑2(b).

     "Medical leave insurance benefits" means the benefits provided under the terms of this chapter to a covered individual while the covered individual is on medical leave.

     "Next of kin" has the same meaning as defined in section 101(17) of the federal Family and Medical Leave Act of 1993 (29 U.S.C. 2611(17)).

     "Qualifying exigency" means leave based on a need arising out of a covered individual's family member's active duty service or notice of an impending call or order to active duty in the armed forces, including but not limited to providing for the care or other needs of the service member's child or other family member, making financial or legal arrangements for the service member, attending counseling, attending military events or ceremonies, spending time with the service member during a rest and recuperation leave or following return from deployment, or making arrangements following the death of the service member.

     "Qualifying service member" means:

     (1)  A member of the armed forces, including a member of the national guard or reserves, who is:

          (A)  Undergoing medical treatment, recuperation, or therapy;

          (B)  Otherwise in outpatient status; or

          (C)  Is otherwise on the temporary disability retired list for a serious injury or illness that was incurred by the member in the line of duty on active duty in the armed forces, or a serious injury or illness that existed before the beginning of the member's active duty and was aggravated by service in the line of duty on active duty in the armed forces; or

     (2)  A former member of the armed forces, including a former member of the national guard or reserves, who is undergoing medical treatment, recuperation, or therapy for a serious injury or illness that was incurred by the member in line of duty on active duty in the armed forces, or a serious injury or illness that existed before the beginning of the member's active duty and was aggravated by service in line of duty on active duty in the armed forces and manifested before or after the member was discharged or released from service.

     "Retaliatory personnel action" means denial of any right guaranteed under this chapter, including but not limited to any demotion, discharge, reduction of hours, suspension, threat, or any other adverse action against an employee for the exercise of any right guaranteed in this chapter, or reporting or threatening to report an employee's suspected citizenship or immigration status or the suspected citizenship or immigration status of a family member of the employee to a federal or state agency.  "Retaliatory personnel action" includes interference with or punishment for, in any manner, participating in or assisting an investigation, proceeding, or hearing under this chapter.

     "Serious health condition" is an illness, injury, impairment, pregnancy, recovery from childbirth, organ donation, termination of pregnancy, or physical or mental condition that involves inpatient care in a hospital, hospice, or residential medical care facility, or continuing treatment by a health care provider.

     "State average weekly wage" has the same meaning as defined in section 386-1.

     "Wages" means all remuneration for services from whatever source, including commissions, bonuses, tips or gratuities received in the course of employment from others than the employer to the extent that they are customary and expected in that type of employment and reported to the employer for payroll tax deduction purposes, and the cash value of all remuneration in any medium other than cash.  The director may adopt rules for the reasonable determination of the cash value of remuneration in any medium other than cash.  The director shall adopt rules regarding the determination of wages for those who elect coverage pursuant to section   -13.  "Wages" does not include the amount of any payment specified in section 383-11.

     §   ‑2  Eligibility of benefits.  (a)  Beginning January 1, 2029, family leave insurance benefits shall be payable to an individual who:

     (1)  Qualifies as a covered individual; and

     (2)  Meets one of the following requirements:

          (A)  Because of birth, adoption, or placement through foster care, is caring for a new child during the first year after the birth, adoption, or placement;

          (B)  Is caring for a family member with a serious health condition;

          (C)  Is caring for a qualifying service member who is the individual's next of kin;

          (D)  Is a victim of domestic abuse, sexual assault, or stalking who needs leave for medical attention; mental health care or other counseling; victim services, including legal services; court appearances; or relocation for themselves or a family member; or

          (E)  Has a qualifying exigency.

     (b)  Beginning January 1, 2029, medical leave insurance benefits shall be payable to an individual who:

     (1)  Qualifies as a covered individual; and

     (2)  Has a serious health condition that makes the covered individual unable to perform the functions of the covered individual's position, except accident or disease connected with or resulting from employment as described in section 386-3 or any other applicable workers' compensation law.

     §   ‑3  Duration of benefits.  (a)  The maximum number of weeks during which family leave insurance benefits are payable in a benefit year shall be twelve weeks.

     (b)  The maximum number of weeks during which medical leave insurance benefits are payable in a benefit year shall be twenty-six weeks.

     (c)  The first payment of benefits shall be made to a covered individual within two weeks after the family leave and medical leave claim is filed or the family leave and medical leave begins, whichever is later, and subsequent payments shall be made every two weeks thereafter.  The department shall notify the claimant of any additional information required to complete or cure their claim within five business days of filing a claim.

     (d)  Claims may be filed up to forty-five days in advance of the family leave and medical leave, if anticipation of the family leave and medical leave is possible.  Claims shall be filed within ninety days after the commencement of the need for family leave and medical leave or as soon thereafter as may be reasonable.

     §   ‑4  Amount of benefits.  (a)  Subject to the maximum weekly benefit amount pursuant to subsection (b), the weekly benefit shall be calculated by adding the amounts obtained by applying the following percentage to a covered individual's average weekly wage during the twelve months preceding submission of the claim or the average weekly wage during the time the covered individual worked, if less than twelve months:

     (1)  Ninety per cent of wages that are equal to or less than fifty per cent of the state average weekly wage;

     (2)  Sixty-six per cent of wages that exceed fifty per cent of the state average weekly wage but is no more than one hundred per cent of the state average weekly wage; and

     (3)  Fifty-five per cent of wages that exceed one hundred per cent of the state average weekly wage.

     (b)  In no case shall the weekly benefit amount exceed the state average weekly wage.

     (c)  Family leave insurance benefits and medical leave insurance benefits shall not be payable to the covered individual until the individual accumulates at least eight hours of family leave insurance benefits and medical leave insurance benefits.

     §   ‑5  Contributions.  (a)  Payroll contributions shall be authorized in order to finance the payment of benefits under and for administration and operation of the family and medical leave insurance program.

     (b)  Beginning January 1, 2028, payroll contributions shall be paid by employers and employees in an amount to be determined by the department, based on a per cent of employee wages.  The department shall be responsible for evaluating and determining on an annual basis the amount of payroll contributions necessary to finance the family and medical leave insurance program.

     (c)  An employer may deduct and withhold contributions from each employee of up to fifty per cent of the amount of payroll contribution determined by the department.

     (d)  An employer with five or more employees shall remit one hundred per cent of the amount of payroll contribution determined by the department to the family and medical leave trust fund.

     (e)  An employer with fewer than five employees shall remit fifty per cent of the amount of payroll contribution determined by the department to the family and medical leave trust fund.

     (f)  A self-employed individual who is electing coverage under section    ‑13 shall remit fifty per cent of the amount of payroll contribution determined by the department to the family and medical leave trust fund.

     §   ‑6  Reduced leave schedule.  (a)  A covered individual shall be entitled, at the option of the covered individual, to take paid family leave and medical leave on an intermittent or reduced leave schedule.  Family leave insurance benefits and medical leave insurance benefits for intermittent or reduced leave schedules shall be prorated.

     (b)  The covered individual shall provide the employer with prior notice of the schedule on which the covered individual will be taking the leave, to the extent practicable.  Paid family leave and medical leave taken under this section shall not result in a reduction of the total amount of leave to which an employee is entitled beyond the amount of leave actually taken.

     (c)  Nothing in this section shall be construed to entitle a covered individual to more leave than allowed under section    ‑3.

     §   ‑7  Leave and employment protection.  (a)  Any covered individual who exercises the covered individual's right to family leave insurance benefits and medical leave insurance benefits shall, upon the expiration of that leave, be entitled to be restored by the employer to the position held by the covered individual when the leave commenced, or to a position with equivalent seniority, status, employment benefits, pay, and other terms and conditions of employment, including but not limited to fringe benefits and service credits that the covered individual had been entitled to at the commencement of leave; provided that job duties and hours in the new position need not be identical to the previously-held position, but the employer shall make a reasonable effort to make them similar, at the employee's request.

     (b)  During any medical leave taken pursuant to section    ‑2, the employer shall maintain any health care benefits the covered individual had before taking the leave, to the extent provided under section 393-15.  Nothing in this subsection shall be interpreted to modify chapter 393.

     (c)  During any family leave taken pursuant to section    ‑2, the employer shall maintain any health care benefits the covered individual had before taking the leave for the duration of the leave as if the covered individual had continued in employment continuously from the date the covered individual commenced the leave until the date the family leave insurance benefits terminate; provided that the covered individual shall continue to pay the covered individual's share of the cost of health benefits as required before the commencement of the leave.

     (d)  Nothing in this section shall be construed to conflict with chapter 393 or title 29 United States Code section 1144 (b)(5)(A) or to modify chapter 393.

     (e)  This section shall be enforced as provided in chapter 398.

     §   ‑8  Retaliatory personnel actions prohibited.  (a)  It shall be unlawful for an employer or any other person to interfere with, restrain, or deny the exercise of, or the attempt to exercise, any right protected under this chapter.

     (b)  An employer, temporary help company, employment agency, employee organization, or other person shall not take retaliatory personnel action or otherwise discriminate against a person because the person exercised rights protected under this chapter.  These rights include but are not limited to the right to request, file for, apply for, or use benefits or leave provided for under this chapter; communicate to the employer or any other person or entity an intent to file a claim, a complaint with the department or courts, or an appeal; testify, plan to testify, or assist in any investigation, hearing, or proceeding under this chapter, at any time, including during the period in which the person receives family leave insurance benefits and medical leave insurance benefits under this chapter; inform any person about any employer's alleged violation of this chapter; and inform any other person of the other person's rights under this chapter.

     (c)  It shall be unlawful for an employer's absence control policy to count paid family leave and medical leave taken under this chapter as an absence that may lead to or result in discipline, discharge, demotion, suspension, or any other adverse action.

     (d)  Protections of this section shall apply to any person who mistakenly, but in good faith, alleges violations of this chapter.

     (e)  This section shall be enforced as provided in chapter 398.

     §   ‑9  Coordination of benefits.  (a)  Leave taken with wage replacement under this chapter that also qualifies as leave under the federal Family and Medical Leave Act of 1993 or chapter 398 shall run concurrently with leave taken under the federal Family and Medical Leave Act of 1993 or chapter 398.

     (b)  An employer may require that payment made pursuant to this chapter be made concurrently or otherwise coordinated with payment made or leave allowed under the terms of disability or family care leave under a collective bargaining agreement or employer policy.  The employer shall give employees written notice of this requirement.

     (c)  This chapter does not diminish an employer's obligation to comply with any of the following that provide more generous leave:

     (1)  A collective bargaining agreement;

     (2)  An employer policy; or

     (3)  Any other law.

     (d)  An individual's right to leave under this chapter shall not be diminished by a collective bargaining agreement entered into or renewed, or an employer policy adopted or retained, after the effective date of this chapter.  Any agreement by an individual to waive the individual's rights under this chapter shall be void as against public policy.

     (e)  Under no circumstances shall an employee be required to use, exhaust, or substitute any accrued vacation leave, sick leave, or other paid time off prior to or while receiving family leave insurance benefits or medical leave insurance benefits under this chapter; provided that an employee may elect to substitute or use any accrued vacation leave, sick leave, or other paid time off while receiving family leave insurance benefits or medical leave insurance benefits under this chapter or paid leave pursuant to section 398-4.  If that accrued vacation leave, sick leave, or other paid time off is compensated at the rate of an employee's usual pay, the employee shall not simultaneously receive family leave insurance benefits and medical leave insurance benefits under this chapter.  If that accrued vacation leave, sick leave, or other paid time off is compensated at less than the employee's usual pay, the employee shall be eligible to simultaneously receive family leave insurance benefits or medical leave insurance benefits; provided that the aggregate amount the employee would receive does not exceed the employee's average weekly wage used by the department to calculate family leave insurance benefits and medical leave insurance benefits.  Nothing in this subsection shall require an employee to receive or use additional vacation leave, sick leave, or paid time off as described in this section.

     §   ‑10  Notice.  (a)  Each employer shall provide written notice to each employee upon hiring and annually thereafter.  An employer shall also provide written notice to an employee when the employee requests leave under this chapter, or when the employer acquires knowledge that an employee's leave may be for a qualifying reason under section    ‑2(a)(2).  The notice shall include:

     (1)  The employee's right to family leave insurance benefits and medical leave insurance benefits under this chapter and the terms under which the benefits may be used;

     (2)  The amount of family leave insurance benefits and medical leave insurance benefits;

     (3)  The procedure for filing a claim for benefits;

     (4)  The procedure for selecting a designated person;

     (5)  The right to employment protection and benefits continuation under section    ‑7;

     (6)  A disclosure that discrimination and retaliatory personnel actions against a person for requesting, applying for, or using family leave insurance benefits and medical leave insurance benefits are prohibited under section    ‑8; and

     (7)  A disclosure that the employee has a right to file a complaint for violations of this chapter.

     (b)  An employer shall display and maintain a poster in a conspicuous place accessible to employees at the employer's place of business that contains the information required by this section in English, Ilocano, Japanese, Tagalog, and any language that is the first language spoken by at least five per cent of the employer's workforce; provided that the notice has been provided by the department.  The director may adopt rules to establish additional requirements concerning the means by which employers shall provide such notice.

     (c)  Employees shall provide notice to their employers as soon as practicable of their intention to take leave under this chapter.

     §   ‑11  Appeals.  (a)  The director shall establish a system for appeals in the case of a denial of family leave insurance benefits and medical leave insurance benefits.  In establishing the system, the director may utilize any and all procedures and appeals mechanisms established under section 383-38.

     (b)  Judicial review of any decision with respect to family leave insurance benefits and medical leave insurance benefits shall be permitted in a court of competent jurisdiction after an aggrieved party has exhausted all administrative remedies established by the director.

     (c)  The director shall implement procedures to ensure confidentiality of all information related to any claims filed or appeals taken to the maximum extent permitted by applicable laws.

     §   ‑12  Erroneous payments and disqualifications for benefits.  (a)  A covered individual shall be disqualified from family leave insurance benefits and medical leave insurance benefits for one year if the individual is determined by the director to have knowingly and wilfully made a false statement or misrepresentation regarding a material fact, or knowingly and wilfully failed to report a material fact, to obtain benefits under this chapter.

     (b)  If family leave insurance benefits or medical leave insurance benefits are paid erroneously or as a result of misrepresentation, or if a claim for family leave insurance benefits or medical leave insurance benefits is rejected after benefits are paid, the department may seek repayment of benefits and penalties from the recipient.  The amount of penalty shall not be greater than one hundred fifty per cent of the amount of benefits paid erroneously to the recipient.  The director shall exercise the director's discretion to waive, in whole or in part, the amount of any payments and penalties where the recovery would be against equity and good conscience.

     §   ‑13  Elective coverage.  (a)  A self-employed person, including a sole proprietor, partner, or joint venturer, may elect coverage under this chapter for an initial period of no less than three years.  The self-employed person shall file a notice of election in writing with the director, as required by the department.  The election shall become effective on the date of filing the notice.  As a condition of election, the self-employed person shall agree to supply any information concerning income that the department deems necessary.

     (b)  A self-employed person who has elected coverage may withdraw from coverage within thirty days after the end of the three-year period of coverage, or at other times as the director may prescribe by rule, by filing written notice with the director.  The withdrawal shall take effect no sooner than thirty days after filing the notice.

     §   ‑14  Family and medical leave insurance program.  (a)  By January 1, 2028, the department shall establish and administer a family and medical leave insurance program and begin collecting contributions as specified in this chapter.  By January 1, 2029, the department shall begin receiving claims and paying family leave insurance benefits and medical leave insurance benefits as specified in this chapter.

     (b)  The department shall establish reasonable procedures and forms for filing claims for benefits under this chapter and shall specify the necessary supporting documentation to support a claim for benefits, including any documentation required from a health care provider for proof of a serious health condition and any documentation required by the department to meet the eligibility requirements for family leave.

     (c)  The department shall notify the employer within five business days of a claim being filed pursuant to this chapter.

     (d)  The department shall use information sharing and integration technology to facilitate the disclosure of relevant information or records so long as the covered individual consents to the disclosure as required under state law.

     (e)  Information contained in the files and records pertaining to a covered individual under this chapter shall be confidential and not open to public inspection, other than to public employees in the performance of their official duties; provided that the individual or an authorized representative of an individual may review the records or receive specific information from the records upon the presentation of the individual's signed authorization.

     (f)  The director shall adopt rules pursuant to chapter 91 as necessary to implement this chapter.

     §   ‑15  Federal and state income tax.  (a)  To the extent that family leave insurance benefits and medical leave insurance benefits under this chapter are subject to federal income tax, the department shall advise a covered individual filing a new claim for family leave insurance benefits or medical leave insurance benefits wholly or partially subject to federal income tax, at the time of filing the claim, that:

     (1)  The Internal Revenue Service has determined that family leave insurance benefits or medical leave insurance benefits may be subject to federal income tax;

     (2)  Requirements exist pertaining to estimated tax payments;

     (3)  The covered individual may elect to have applicable federal income tax deducted and withheld from the covered individual's payment of benefits in the amount specified in the Internal Revenue Code of 1986, as amended; and

     (4)  The covered individual is permitted to change a previously elected withholding status.

     (b)  Family leave insurance benefits and medical leave insurance benefits under this chapter shall not be subject to state income tax.

     §   ‑16  Family and medical leave trust fund.  (a)  There is established in the treasury of the State as a trust fund, separate and apart from all public moneys or funds of the State, a family and medical leave trust fund, which shall be administered by the department exclusively for the purposes of this chapter.  All contributions pursuant to this chapter shall be paid into the trust fund and all benefits payable pursuant to this chapter shall be paid from the trust fund.  All moneys in the trust fund shall be mingled and undivided.

     (b)  Whenever in the judgment of the director of finance there shall be in the trust fund an amount of funds in excess of that amount deemed by the director of finance to be sufficient to meet the current expenditures properly payable therefrom, the director of finance shall have full power to invest, reinvest, manage, contract, or sell or exchange investments acquired with the excess funds in the manner prescribed by law.

     (c)  On January 1, 2026, or as soon as possible thereafter, the director of finance shall transfer $           from the general fund to the family and medical leave trust fund to cover the start-up costs to administer this chapter before and during the first year of payroll contributions.  Such costs may include but not limited to hiring and employing personnel to perform functions relating to the establishment and administration of the family and medical leave trust fund, project administration and outreach, and procurement of information technology and data systems to develop and implement the administrative infrastructure necessary to implement this chapter.  All contracting shall be done in accordance with state law with regard to procurement of services from an outside vendor.

     (d)  No later than December 31, 2030, the department shall repay the loan of $           received pursuant to subsection (c).

     §   ‑17  Reports.  Beginning January 1, 2030, the department shall report to the legislature by April 1 of each year on projected and actual program participation in the family and medical leave insurance program and include the criteria listed in section    ‑2(a)(2), gender of beneficiary, premium rates, fund balances, outreach efforts, and, for leaves taken under section    ‑2(a)(2)(B), family members for whom leave was taken to provide care.

     §   ‑18  Public education.  The department shall conduct a public education campaign to inform employees and employers regarding the availability of family leave insurance benefits and medical leave insurance benefits.  Outreach information shall be available in English, Ilocano, Chuukese, Marshallese, Tagalog, Spanish, and other languages spoken by more than five per cent of the students in the department of education's English learner program.

     §   ‑19  Sharing technology.  The department may use state data collection and technology to the extent possible and to integrate the program with existing state policies.

     §   ‑20  Severability.  If any provision of this chapter or its claim to any person or circumstance is held invalid, the invalidity shall not affect other provisions or claims of the chapter which can be given effect without the invalid provision or claim, and to this end the provisions of this chapter are declared to be severable."

     SECTION 2.  The department shall adopt all rules necessary for implementation of this part by January 1, 2027.

PART II

     SECTION 3.  Chapter 392, Hawaii Revised Statutes, is repealed.

     SECTION 4.  Subpart B of part VI of chapter 378, Hawaii Revised Statutes, is repealed.

PART III

     SECTION 5.  Section 41D-2, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows:

     "(a)  The comptroller, through the risk manager, shall:

     (1)  Have discretion to purchase casualty insurance for the State or state agencies, including those employees of the State who, in the comptroller's discretion, may be at risk and shall be responsible for the acquisition of all casualty insurance;

     (2)  Have discretion to purchase property insurance for the State or state agencies and shall acquire all property insurance;

     (3)  Direct and manage all risk management and insurance programs of the State, except for employee benefits insurance and workers' compensation insurance programs or as otherwise provided in chapters 87A, 88, 383 to 386A, [392,] and 393;

     (4)  Consult with state agencies to determine what property, casualty, and other insurance policies are presently in force or are sought by the state agencies and to make determinations about whether to continue subscribing to insurance policies.  In the event that the risk manager's determination is not satisfactory to the state agency, the state agency may have the risk manager's decision reviewed by the comptroller.  In this case, the comptroller's decision shall be final;

     (5)  Consolidate and combine state insurance coverages, and purchase excess insurance when, in the comptroller's discretion, it is appropriate to do so;

     (6)  Acquire risk management, investigative, claims adjustment, actuarial, and other services, except attorney's services, as may be required for the sound administration of this chapter; provided that a broker submitting a proposal in response to a fixed fee solicitation by the comptroller pursuant to this subsection and the broker's performance of the activities in accordance with the proposal shall not constitute a violation of sections 431:10-218, 431:13‑102, and 431:13-103;

     (7)  Gather from all state agencies and maintain data regarding the State's risks and casualty, property, and fidelity losses;

     (8)  In conjunction with the attorney general and as otherwise provided by this chapter, compromise or settle claims cognizable under chapter 662;

     (9)  Provide technical services in risk management and insurance to state agencies;

    (10)  Be authorized to establish a captive insurance company pursuant to article 19 of chapter 431 to effectuate the purposes of this chapter; and

    (11)  Do all other things appropriate to the development of sound risk management practices and policies for the State."

     SECTION 6.  Section 103D-310, Hawaii Revised Statutes, is amended by amending subsection (c) to read as follows:

     "(c)  All offerors, upon award of contract, shall comply with all laws governing entities doing business in the State, including chapters 237, 383, 386, [392,] and 393.  Offerors shall produce documents to the procuring officer to demonstrate compliance with this subsection.  Any offeror making a false affirmation or certification under this subsection shall be suspended from further offerings or awards pursuant to section 103D-702.  The procuring officer shall verify compliance with this subsection for all contracts awarded pursuant to sections 103D-302, 103D-303, 103D-304, and 103D-306, and for contracts and procurements of $2,500 or more awarded pursuant to section 103D-305; provided that the attorney general may waive the requirements of this subsection for contracts for legal services if the attorney general certifies in writing that comparable legal services are not available in this State."

     SECTION 7.  Section 302D-26, Hawaii Revised Statutes, is amended by amending subsection (b) to read as follows:

     "(b)  The State shall afford administrative, support, and instructional employees in charter schools full participation in the State's systems for retirement, workers' compensation, unemployment insurance, [temporary disability insurance,] paid family and medical leave, and health benefits in accordance with the qualification requirements for each."

     SECTION 8.  Section 373L-2, Hawaii Revised Statutes, is amended by amending subsection (b) to read as follows:

     "(b)  Registration information required by this section shall include:

     (1)  The name or names under which the professional employer organization conducts or will conduct business;

     (2)  The address of the principal place of business of the professional employer organization and the address of each office that the professional employer organization maintains in this State;

     (3)  The professional employer organization's general excise tax number;

     (4)  A copy of the certificate of authority to transact business in this State issued by the director of commerce and consumer affairs pursuant to title 23 or title 23A, if applicable;

     (5)  A list, organized by jurisdiction, of each name under which the professional employer organization has operated in the preceding five years, including any alternative names; names of predecessors; and, if known, names of successor business entities;

     (6)  A statement of ownership, which shall include the name of each person who, individually or acting in concert with any other person or persons, owns or controls, directly or indirectly, twenty-five per cent or more of the equity interests of the professional employer organization;

     (7)  A statement of management, which shall include the name of any person who serves as president or chief executive officer or who otherwise has the authority to act as a senior executive officer of the professional employer organization;

     (8)  Proof of valid workers' compensation coverage in compliance with all laws of this State;

     (9)  Proof of compliance with [the Hawaii temporary disability insurance law;] chapter    ;

    (10)  Proof of compliance with the Hawaii prepaid health care act;

    (11)  Proof of compliance with the Hawaii employment security law, including payment of any applicable employer liability pursuant to chapter 383;

    (12)  The name, address, and phone number of the financial institution utilized by the professional employer organization for payroll purposes that operates and maintains branches in the State;

    (13)  The name of each client company that is party to a professional employer agreement with a professional employer organization which shall be provided to the department on a form approved by the department within twenty-one business days of the initiation of the agreement and within twenty-one business days of the termination of the agreement; and

    (14)  A copy of the Internal Revenue Service Form W-3, Transmittal of Wage and Tax Statements, that was most recently filed with the federal government, and which shall be used for obtaining a bond or irrevocable letter of credit pursuant to section 373L-3."

     SECTION 9.  Section 373L-6, Hawaii Revised Statutes, is amended to read as follows:

     "[[]§373L-6[]]  Responsibility of professional employer organizations.  During the term of the agreement between a professional employer organization and its client company, the professional employer organization shall be deemed the employer for all covered employees for purposes of complying with all laws relating to unemployment insurance, workers' compensation, [temporary disability insurance,] paid family and medical leave, and prepaid health care coverage and the professional employer organization shall provide written notification to each covered employee of this responsibility."

     SECTION 10.  Section 393‑3, Hawaii Revised Statutes, is amended by amending the definition of "wages" to read as follows:

     ""Wages" means all remuneration for services from whatever source, including commissions, bonuses, and tips and gratuities paid directly to any individual by a customer of the individual's employer, and the cash value of all remuneration in any medium other than cash.

     The director may issue [regulations] rules for the reasonable determination of the cash value of remuneration in any medium other than cash.

     If the employee does not account to the employee's employer for the tips and gratuities received and is engaged in an occupation in which the employee customarily and regularly receives more than $20 a month in tips, the combined amount received by the employee from the employee's employer and from tips shall be deemed to be at least equal to the wage required by chapter 387 or a greater sum as determined by regulation of the director.

     "Wages" does not include the amount of any payment specified in section 383‑11 [or 392‑22] or chapter 386."

     SECTION 11.  Section 398-1, Hawaii Revised Statutes, is amended by amending the definition of "sick leave" to read as follows:

     ""Sick leave":

     (1)  Means accrued increments of compensated leave provided by an employer to an employee for use by the employee for any of the following reasons:

          (A)  The employee is physically or mentally unable to perform the employee's duties due to illness, injury, or a medical condition of the employee;

          (B)  The absence is for the purpose of obtaining professional diagnosis or treatment for a medical condition of the employee; or

          (C)  The absence is for other medical reasons of the employee, such as pregnancy or obtaining a physical examination; and

     (2)  Shall not include any insurance benefit, workers' compensation benefit, unemployment compensation due to illness or disability, or [temporary disability] medical leave insurance benefit."

     SECTION 12.  Section 398‑4, Hawaii Revised Statutes, is amended by amending subsection (c) to read as follows:

     "(c)  An employer who provides sick leave for employees shall permit an employee to use the employee's accrued and available sick leave for purposes of this chapter[; provided that an employee shall not use more than ten days per year for this purpose, unless an express provision of a valid collective bargaining agreement authorizes the use of more than ten days of sick leave for family leave purposes.  Nothing in this section shall require an employer to diminish an employee's accrued and available sick leave below the amount required pursuant to section 392-41; provided that any sick leave in excess of the minimum statutory equivalent for temporary disability benefits as determined by the department may be used for purposes of this chapter]."

     SECTION 13.  Section 431:10‑244, Hawaii Revised Statutes, is amended to read as follows:

     "§431:10‑244  Filing procedure for contracts approved by commissioner.  Each insurance contract requiring approval by the commissioner pursuant to this code[, section 392‑48,] or section 386‑124 and each contract certified by the insurer to be in conformity with this code shall be accompanied by a $20 fee payable to the commissioner, which shall be deposited into the commissioner's education and training fund."

PART IV

     SECTION 14.  Section 378‑71, Hawaii Revised Statutes, is amended by repealing the definition of "health care provider".

     [""Health care provider" means a physician as defined under section 386-1."]

PART V

     SECTION 15.  If any provision of this Act, or the claim thereof to any person or circumstance, is held invalid, the invalidity does not affect other provisions or claims of the Act that can be given effect without the invalid provision or claim, and to this end the provisions of this Act are severable.

     SECTION 16.  Statutory material to be repealed is bracketed and stricken.  New statutory material is underscored.

     SECTION 17.  This Act shall take effect on July 1, 3000; provided that parts II, III, and IV shall take effect on the earlier of January 1, 2029, or the start of the department of labor and industrial relations receiving claims and paying family leave insurance benefits and medical leave insurance benefits as specified under chapter    , Hawaii Revised Statutes, as enacted by this Act.

Report Title:

Keiki Caucus; Family and Medical Leave Insurance Program; Family and Medical Leave Insurance Benefits; Department of Labor and Industrial Relations

Description:

By 1/1/2028, requires the Department of Labor and Industrial Relations to establish a family and medical leave insurance program and begin collecting payroll contributions to finance payment of benefits.  By 1/1/2029, requires the Department to start receiving claims and paying benefits under the program.  Specifies eligibility requirements and employee protections under the program.  Effective 7/1/3000.  (HD2)

The summary description of legislation appearing on this page is for informational purposes only and is not legislation or evidence of legislative intent.

A BILL FOR AN ACT

RELATING TO PAID FAMILY LEAVE.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:

PART I

     SECTION 1.  The Hawaii Revised Statutes is amended by adding a new chapter to be appropriately designated and to read as follows:

"Chapter

PAID FAMILY AND MEDICAL LEAVE

     §   ‑1  Definitions.  As used in this chapter, unless the context clearly requires otherwise:

     "Benefit year" means the one-year period beginning with the first day of the calendar week for which the individual files a valid claim for family and medical leave insurance benefits.  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 and medical leave with respect to which the individual files a subsequent claim for family and medical leave insurance benefits; or

     (2)  Workday following the expiration of the preceding benefit year if a need for family and medical leave for which family and medical leave insurance benefits are payable during the last week of the preceding benefit year continues and the individual is eligible for further benefit payments.

     "Covered individual" means:

     (1)  Any person who:

          (A)  Has been working for an employer for at least fourteen weeks during each of which the individual has received remuneration in any form and earned wages of at least $5,040, during the fifty-two weeks immediately prior to paid leave granted under this chapter; or

          (B)  Is self-employed, elects coverage, and meets the requirements of section    ‑13;

     (2)  Meets the administrative requirements outlined in this chapter and in rules adopted thereunder; and

     (3)  Submits a claim.

     "Department" means the department of labor and industrial relations.

     "Designated person" means any individual related by blood or whose association with the covered individual is the equivalent of a family relationship.  A covered individual may choose one designated person per benefit year, and the designated person may be identified by the covered individual at the time the covered individual requests the leave or files a claim.

     "Director" means the director of labor and industrial relations.

     "Domestic partner" means a person at least eighteen years of age who:

     (1)  Is dependent upon the covered individual for support as shown by either unilateral dependence or mutual interdependence that is evidenced by a nexus of factors including but not limited to:

          (A)  Common ownership of real or personal property;

          (B)  Common householding;

          (C)  Children in common;

          (D)  Signs of intent to marry;

          (E)  Shared budgeting; and

          (F)  The length of the personal relationship with the covered individual; or

     (2)  Has registered as the domestic partner of the covered individual with any registry of domestic partnerships maintained by the employer of either party, or in any state, county, city, town, or village in the United States.

     "Employee" includes any individual employed by an employer.

     "Employer" shall have the same meaning as that term is defined in section 387‑1; provided that "employer" shall include the State or counties or any political subdivision thereof.

     "Family leave" means leave taken pursuant to section    -2(a).

     "Family leave insurance benefits" means the benefits provided under the terms of this chapter to a covered individual while the covered individual is on family leave.

     "Family member" means:

     (1)  A biological, adopted or foster child, stepchild or legal ward, a child of a domestic partner, or a child to whom the covered individual stands in loco parentis;

     (2)  A biological, adoptive or foster parent, stepparent or legal guardian of a covered individual or a covered individual's spouse or domestic partner or a person who stood in loco parentis when the covered individual or the covered individual's spouse or domestic partner was a minor child;

     (3)  A person to whom the covered individual is legally married under the laws of any state, or a domestic partner of a covered individual; or

     (4)  A grandparent, grandchild or sibling (whether a biological, foster, adoptive or step relationship) of the covered individual, the covered individual's designated person, the covered individual's spouse or domestic partner, or the spouse or domestic partner of a covered individual's sibling.

     "Health care provider" means any person licensed under federal or state law to provide medical or emergency services, including but not limited to doctors, nurses, and emergency room personnel, or certified midwives.

     "Medical leave" means leave taken pursuant to section    -2(b).

     "Medical leave insurance benefits" means the benefits provided under the terms of this chapter to a covered individual while the covered individual is on medical leave.

     "Next of kin" shall have the same meaning as that term is defined in section 101(17) of the federal Family and Medical Leave Act (29 U.S.C. 2611(17)).

     "Qualifying exigency" means leave based on a need arising out of a covered individual's family member's active duty service or notice of an impending call or order to active duty in the armed forces, including but not limited to providing for the care or other needs of the military member's child or other family member, making financial or legal arrangements for the military member, attending counseling, attending military events or ceremonies, spending time with the military member during a rest and recuperation leave or following return from deployment, or making arrangements following the death of the military member.

     "Qualifying service member" means:

     (1)  A member of the armed forces, including a member of the national guard or reserves, who is:

          (A)  Undergoing medical treatment, recuperation, or therapy;

          (B)  Otherwise in outpatient status; or

          (C)  Is otherwise on the temporary disability retired list for a serious injury or illness that was incurred by the member in the line of duty on active duty in the armed forces, or a serious injury or illness that existed before the beginning of the member's active duty and was aggravated by service in the line of duty on active duty in the armed forces; or

     (2)  A former member of the armed forces, including a former member of the national guard or reserves, who is undergoing medical treatment, recuperation, or therapy for a serious injury or illness that was incurred by the member in line of duty on active duty in the armed forces, or a serious injury or illness that existed before the beginning of the member's active duty and was aggravated by service in line of duty on active duty in the armed forces and manifested before or after the member was discharged or released from service.

     "Retaliatory personnel action" means denial of any right guaranteed under this chapter, including but not limited to any threat, discharge, suspension, demotion, reduction of hours, any other adverse action against an employee for the exercise of any right guaranteed in this chapter, or reporting or threatening to report an employee's suspected citizenship or immigration status or the suspected citizenship or immigration status of a family member of the employee to a federal or state agency.  "Retaliatory personnel action" includes interference with or punishment for, in any manner, participating in or assisting an investigation, proceeding, or hearing under this chapter.

     "Serious health condition" is an illness, injury, impairment, pregnancy, recovery from childbirth, organ donation, termination of pregnancy, or physical or mental condition that involves inpatient care in a hospital, hospice, or residential medical care facility, or continuing treatment by a health care provider.

     "State average weekly wage" shall have the same meaning as that term is defined in section 386-1.

     "Wages" means all remuneration for services from whatever source, including commissions, bonuses, tips or gratuities received in the course of employment from others than the employer to the extent that they are customary and expected in that type of employment and reported to the employer for payroll tax deduction purposes, and the cash value of all remuneration in any medium other than cash.  The director may issue regulations for the reasonable determination of the cash value of remuneration in any medium other than cash.  The director shall issue regulations regarding the determination of wages for those who elect coverage pursuant to section   -13.  For the purposes of this chapter, "wages" does not include the amount of any payment specified in section 383-11.

     §   ‑2  Eligibility of benefits.  (a)  Beginning January 1, 2029, family leave insurance benefits shall be payable to an individual who:

     (1)  Qualifies as a covered individual; and

     (2)  Meets one of the following requirements:

          (A)  Because of birth, adoption, or placement through foster care, is caring for a new child during the first year after the birth, adoption, or placement;

          (B)  Is caring for a family member with a serious health condition;

          (C)  Is caring for a qualifying service member who is the individual's next of kin;

          (D)  Is a victim of domestic abuse, sexual assault, or stalking who needs leave for medical attention; mental health care or other counseling; victim services, including legal services; court appearances; or relocation for themselves or a family member; or

          (E)  Has a qualifying exigency.

     (b)  Beginning January 1, 2029, medical leave insurance benefits shall be payable to an individual who:

     (1)  Qualifies as a covered individual; and

     (2)  Has a serious health condition that makes the covered individual unable to perform the functions of the covered individual's position, except accident or disease connected with or resulting from employment as defined in section 386-3 or any other applicable workers' compensation law.

     §   ‑3  Duration of benefits.  (a)  The maximum number of weeks during which family leave insurance benefits are payable in an benefit year shall be twelve weeks.

     (b)  The maximum number of weeks during which medical leave insurance benefits are payable in an benefit year shall be twenty-six weeks.

     (c)  The first payment of benefits shall be made to a covered individual within two weeks after the family and medical leave claim is filed or the family and medical leave begins, whichever is later, and subsequent payments shall be made every two weeks thereafter.  The department shall notify the claimant of any additional information required to complete or cure their claim within five business days of filing a claim.

     (d)  Claims may be filed up to forty-five days in advance of the family and medical leave, if anticipation of the family and medical leave is possible.  Claims shall be filed within ninety days after the commencement of the need for family and medical leave or as soon thereafter as may be reasonable.

     §   ‑4  Amount of benefits.  (a)  Subject to the maximum weekly benefit amount pursuant to subsection (b), the weekly benefit shall be calculated by adding the amounts obtained by applying the following percentage to a covered individual's average weekly wage during the twelve months preceding submission of the claim or the average weekly wage during the time the covered individual worked, if less than twelve months:

     (1)  Ninety per cent of wages that are equal to or less than fifty per cent of the State's average weekly wage;

     (2)  Sixty-six per cent of wages that exceed fifty per cent of the State's average weekly wage but is not more than one hundred per cent; and

     (3)  Fifty-five per cent of wages that exceed one hundred per cent of the State's average weekly wage.

     (b)  In no case shall the weekly benefit amount exceed the state average weekly wage.

     (c)  Family and medical leave insurance benefits shall not be payable to the covered individual until the individual accumulates at least eight hours of family and medical leave insurance benefits.

     §   ‑5  Contributions.  (a)  Payroll contributions shall be authorized in order to finance the payment of benefits under and for administration and operation of the family and medical leave insurance program.

     (b)  Beginning January 1, 2028, payroll contributions shall be paid by employers and employees in an amount to be determined by the department, based on a per cent of employee wages.  The department shall be responsible for evaluating and determining on an annual basis the amount of payroll contributions necessary to finance the family and medical leave insurance benefits program.

     (c)  An employer may deduct and withhold contributions from each employee of up to fifty per cent of the amount of payroll contribution determined by the department.

     (d)  An employer with five or more employees shall remit one hundred per cent of the amount of payroll contribution determined by the department to the family and medical leave trust fund.

     (e)  An employer with fewer than five employees shall remit fifty per cent of the amount of payroll contribution determined by the department to the family and medical leave trust fund.

     (f)  A self-employed individual who is electing coverage under section    ‑13 shall remit fifty per cent of the amount of payroll contribution determined by the department to the family and medical leave trust fund.

     §   ‑6  Reduced leave schedule.  (a)  A covered individual shall be entitled, at the option of the covered individual, to take paid family and medical leave on an intermittent or reduced leave schedule.  Family and medical leave insurance benefits for intermittent or reduced leave schedules shall be prorated.

     (b)  The covered individual shall provide the employer with prior notice of the schedule on which the covered individual will be taking the leave, to the extent practicable.  Paid family and medical leave taken under this section shall not result in a reduction of the total amount of leave to which an employee is entitled beyond the amount of leave actually taken.

     (c)  Nothing in this section shall be construed to entitle a covered individual to more leave than allowed under section    ‑3.

     §   ‑7  Leave and employment protection.  (a)  Any covered individual who exercises the covered individual's right to family and medical leave insurance benefits shall, upon the expiration of that leave, be entitled to be restored by the employer to the position held by the covered individual when the leave commenced, or to a position with equivalent seniority, status, employment benefits, pay, and other terms and conditions of employment, including but not limited to fringe benefits and service credits that the covered individual had been entitled to at the commencement of leave; provided that job duties and hours in the new position need not be identical to the previously-held position, but the employer shall make a reasonable effort to make them similar, at the employee's request.

     (b)  During any medical leave taken pursuant to section    ‑2, the employer shall maintain any health care benefits the covered individual had prior to taking such leave, to the extent provided under section 393-15.  Nothing in this subsection shall be interpreted to modify chapter 393.

     (c)  During any family leave taken pursuant to section    -2, the employer shall maintain any health care benefits the covered individual had prior to taking such leave for the duration of the leave as if the covered individual had continued in employment continuously from the date the covered individual commenced the leave until the date the family leave insurance benefits terminate; provided that the covered individual shall continue to pay the covered individual's share of the cost of health benefits as required prior to the commencement of the leave.

     (d)  Nothing in this section shall be construed to conflict with chapter 393 or title 29 United States Code section 1144 (b)(5)(A) or to modify chapter 393.

     (e)  This section shall be enforced as provided in chapter 398.

     §   ‑8  Retaliatory personnel actions prohibited.  (a)  It shall be unlawful for an employer or any other person to interfere with, restrain, or deny the exercise of, or the attempt to exercise, any right protected under this chapter.

     (b)  An employer, temporary help company, employment agency, employee organization, or other person shall not take retaliatory personnel action or otherwise discriminate against a person because the person exercised rights protected under this chapter.  These rights include but are not limited to the right to request, file for, apply for, or use benefits or leave provided for under this chapter; communicate to the employer or any other person or entity an intent to file a claim, a complaint with the department or courts, or an appeal; testify, plan to testify, or assist in any investigation, hearing, or proceeding under this chapter, at any time, including during the period in which the person receives family and medical leave insurance benefits under this chapter; inform any person about any employer's alleged violation of this chapter; and inform any other person of the other person's rights under this chapter.

     (c)  It shall be unlawful for an employer's absence control policy to count paid family and medical leave taken under this chapter as an absence that may lead to or result in discipline, discharge, demotion, suspension, or any other adverse action.

     (d)  Protections of this section shall apply to any person who mistakenly, but in good faith, alleges violations of this chapter.

     (e)  This section shall be enforced as provided in chapter 398.

     §   ‑9  Coordination of benefits.  (a)  Leave taken with wage replacement under this chapter that also qualifies as leave under the federal Family and Medical Leave Act or chapter 398 shall run concurrently with leave taken under the federal Family and Medical Leave Act or chapter 398.

     (b)  An employer may require that payment made pursuant to this chapter be made concurrently or otherwise coordinated with payment made or leave allowed under the terms of disability or family care leave under a collective bargaining agreement or employer policy.  The employer shall give employees written notice of this requirement.

     (c)  This chapter does not diminish an employer's obligation to comply with any of the following that provide more generous leave:

     (1)  A collective bargaining agreement;

     (2)  An employer policy; or

     (3)  Any other law.

     (d)  An individual's right to leave under this chapter may not be diminished by a collective bargaining agreement entered into or renewed, or an employer policy adopted or retained, after the effective date of this chapter.  Any agreement by an individual to waive the individual's rights under this chapter is void as against public policy.

     (e)  Under no circumstances shall an employee be required to use, exhaust, or substitute any accrued vacation leave, sick leave, or other paid time off prior to or while receiving family and medical leave insurance benefits under this chapter;  provided that an employee may elect to substitute or use any accrued vacation leave, sick leave, or other paid time off while receiving family or medical leave insurance benefits under this chapter or paid leave pursuant to section 398-4.  If that accrued vacation leave, sick leave, or other paid time off is compensated at the rate of an employee’s usual pay, the employee shall not simultaneously receive family and medical leave insurance benefits under this chapter.  If that accrued vacation leave, sick leave, or other paid time off is compensated at less than the employee’s usual pay, the employee shall be eligible to simultaneously receive family and medical leave insurance benefits; provided that the aggregate amount the employee would receive does not exceed the employee’s average weekly wage used by the department to calculate family and medical leave insurance benefits.  Nothing in this subsection shall require an employee to receive or use additional vacation leave, sick leave, or paid time off as described in this section.

     §   ‑10  Notice.  (a)  Each employer shall provide written notice to each employee upon hiring and annually thereafter.  An employer shall also provide written notice to an employee when the employee requests leave under this chapter, or when the employer acquires knowledge that an employee's leave may be for a qualifying reason under section    ‑2(a)(2).  Such notice shall include:

     (1)  The employee's right to family and medical leave insurance benefits under this chapter and the terms under which the benefits may be used;

     (2)  The amount of family and medical leave insurance benefits;

     (3)  The procedure for filing a claim for benefits;

     (4)  The procedure for selecting a designated person;

     (5)  The right to employment protection and benefits continuation under section    ‑7;

     (6)  That discrimination and retaliatory personnel actions against a person for requesting, applying for, or using family and medical leave insurance benefits is prohibited under section    ‑8; and

     (7)  That the employee has a right to file a complaint for violations of this chapter.

     (b)  An employer shall display and maintain a poster in a conspicuous place accessible to employees at the employer's place of business that contains the information required by this section in English, Ilocano, Tagalog, Japanese, and any language that is the first language spoken by at least five per cent of the employer's workforce; provided that the notice has been provided by the department.  The director may adopt rules to establish additional requirements concerning the means by which employers shall provide such notice.

     (c)  Employees shall provide notice to their employers as soon as practicable of their intention to take leave under this chapter.

     §   ‑11  Appeals.  (a)  The director shall establish a system for appeals in the case of a denial of family and medical leave insurance benefits.  In establishing the system, the director may utilize any and all procedures and appeals mechanisms established under section 383-38.

     (b)  Judicial review of any decision with respect to family and medical leave insurance benefits shall be permitted in a court of competent jurisdiction after an aggrieved party has exhausted all administrative remedies established by the director.

     (c)  The director shall implement procedures to ensure confidentiality of all information related to any claims filed or appeals taken to the maximum extent permitted by applicable laws.

     §   ‑12  Erroneous payments and disqualifications for benefits.  (a)  A covered individual shall be disqualified from family and medical leave insurance benefits for one year if the individual is determined by the director to have knowingly and wilfully made a false statement or misrepresentation regarding a material fact, or knowingly and wilfully failed to report a material fact, to obtain benefits under this chapter.

     (b)  If family and medical leave insurance benefits are paid erroneously or as a result of misrepresentation, or if a claim for family and medical leave insurance benefits is rejected after benefits are paid, the department may seek repayment of benefits and penalties from the recipient.  The amount of penalty shall not be greater than one hundred fifty per cent of the amount of benefits paid erroneously to the recipient.  The director shall exercise the director's discretion to waive, in whole or in part, the amount of any payments and penalties where the recovery would be against equity and good conscience.

     §   ‑13  Elective coverage.  (a)  A self-employed person, including a sole proprietor, partner, or joint venturer, may elect coverage under this chapter for an initial period of not less than three years.  The self-employed person shall file a notice of election in writing with the director, as required by the department.  The election shall become effective on the date of filing the notice.  As a condition of election, the self-employed person shall agree to supply any information concerning income that the department deems necessary.

     (b)  A self-employed person who has elected coverage may withdraw from coverage within thirty days after the end of the three-year period of coverage, or at other times as the director may prescribe by rule, by filing written notice with the director.  The withdrawal shall take effect no sooner than thirty days after filing the notice.

     §   ‑14  Family and medical leave insurance program.  (a)  By January 1, 2028, the department shall establish and administer a family and medical leave insurance program and begin collecting contributions as specified in this chapter.  By January 1, 2029, the department shall begin receiving claims and paying family and medical leave insurance benefits as specified in this chapter.

     (b)  The department shall establish reasonable procedures and forms for filing claims for benefits under this chapter and shall specify the necessary supporting documentation to support a claim for benefits, including any documentation required from a health care provider for proof of a serious health condition and any documentation required by the department to meet the eligibility requirements for family leave.

     (c)  The department shall notify the employer within five business days of a claim being filed pursuant to this chapter.

     (d)  The department shall use information sharing and integration technology to facilitate the disclosure of relevant information or records so long as the covered individual consents to the disclosure as required under state law.

     (e)  Information contained in the files and records pertaining to a covered individual under this chapter shall be confidential and not open to public inspection, other than to public employees in the performance of their official duties; provided that the individual or an authorized representative of an individual may review the records or receive specific information from the records upon the presentation of the individual's signed authorization.

     (f)  The director shall adopt rules as necessary to implement this chapter.

     §   ‑15  Federal and state income tax.  (a) To the extent that family and medical leave insurance benefits under this chapter are subject to federal income tax, the department shall advise a covered individual filing a new claim for family and medical leave insurance benefits wholly or partially subject to federal income tax, at the time of filing the claim, that:

     (1)  The Internal Revenue Service has determined that family and medical leave insurance benefits may be subject to federal income tax;

     (2)  Requirements exist pertaining to estimated tax payments;

     (3)  The individual may elect to have applicable federal income tax deducted and withheld from the individual's payment of benefits in the amount specified in the Internal Revenue Code of 1986, as amended; and

     (4)  The individual is permitted to change a previously elected withholding status.

     (b)  Family and medical leave insurance benefits under this chapter shall not be subject to state income tax.

     §   ‑16  Family and medical leave trust fund.  (a)  There is established in the treasury of the State as a trust fund, separate and apart from all public moneys or funds of the State, a family and medical leave trust fund, which shall be administered by the department exclusively for the purposes of this chapter.  All contributions pursuant to this chapter shall be paid into the trust fund and all benefits payable pursuant to this chapter shall be paid from the trust fund.  All moneys in the trust fund shall be mingled and undivided.

     (b)  Whenever in the judgment of the director of finance there shall be in the trust fund an amount of funds in excess of that amount deemed by the director of finance to be sufficient to meet the current expenditures properly payable therefrom, the director of finance shall have full power to invest, reinvest, manage, contract, or sell or exchange investments acquired with the excess funds in the manner prescribed by law.

     (c)  On January 1, 2026, or as soon as possible thereafter, the director of finance shall transfer $           from the general fund to the family and medical leave trust fund to cover the start-up costs to administer this chapter before and during the first year of payroll contributions.  Such costs may include but not limited to hiring and employing personnel to perform functions relating to the establishment and administration of the family and medical leave trust fund, project administration and outreach, and procurement of information technology and data systems to develop and implement the administrative infrastructure necessary to implement this chapter.  All contracting shall be done in accordance with state law with regard to procurement of services from an outside vendor.

     (d)  No later than December 31, 2030, the department shall repay the loan of $           received pursuant to subsection (c).

     §   ‑17  Reports.  Beginning January 1, 2030, the department shall report to the legislature by April 1 of each year on projected and actual program participation in the family and medical leave insurance program and include the criteria listed in section    ‑2(a)(2), gender of beneficiary, premium rates, fund balances, outreach efforts, and, for leaves taken under section    ‑2(a)(2)(B), family members for whom leave was taken to provide care.

     §   ‑18  Public education.  The department shall conduct a public education campaign to inform employees and employers regarding the availability of family and medical leave insurance benefits.  Outreach information shall be available in English, Ilocano, Chuukese, Marshallese, Tagalog, Spanish, and other languages spoken by more than five per cent of the students in the department of education's English learner program.

     §   ‑19  Sharing technology.  The department may use state data collection and technology to the extent possible and to integrate the program with existing state policies.

     §   ‑20  Severability.  If any provision of this chapter or its claim to any person or circumstance is held invalid, the invalidity shall not affect other provisions or claims of the chapter which can be given effect without the invalid provision or claim, and to this end the provisions of this chapter are declared to be severable."

     SECTION 2.  The department shall adopt all rules necessary for implementation of this part by January 1, 2027.

PART II

     SECTION 3.  Chapter 392, Hawaii Revised Statutes, is repealed.

     SECTION 4.  Subpart B of part VI of chapter 378, Hawaii Revised Statutes, is repealed.

PART III

     SECTION 5.  Section 41D-2, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows:

     "(a)  The comptroller, through the risk manager, shall:

     (1)  Have discretion to purchase casualty insurance for the State or state agencies, including those employees of the State who, in the comptroller's discretion, may be at risk and shall be responsible for the acquisition of all casualty insurance;

     (2)  Have discretion to purchase property insurance for the State or state agencies and shall acquire all property insurance;

     (3)  Direct and manage all risk management and insurance programs of the State, except for employee benefits insurance and workers' compensation insurance programs or as otherwise provided in chapters 87A, 88, 383 to 386A, [392,] and 393;

     (4)  Consult with state agencies to determine what property, casualty, and other insurance policies are presently in force or are sought by the state agencies and to make determinations about whether to continue subscribing to insurance policies.  In the event that the risk manager's determination is not satisfactory to the state agency, the state agency may have the risk manager's decision reviewed by the comptroller.  In this case, the comptroller's decision shall be final;

     (5)  Consolidate and combine state insurance coverages, and purchase excess insurance when, in the comptroller's discretion, it is appropriate to do so;

     (6)  Acquire risk management, investigative, claims adjustment, actuarial, and other services, except attorney's services, as may be required for the sound administration of this chapter; provided that a broker submitting a proposal in response to a fixed fee solicitation by the comptroller pursuant to this subsection and the broker's performance of the activities in accordance with the proposal shall not constitute a violation of sections 431:10-218, 431:13‑102, and 431:13-103;

     (7)  Gather from all state agencies and maintain data regarding the State's risks and casualty, property, and fidelity losses;

     (8)  In conjunction with the attorney general and as otherwise provided by this chapter, compromise or settle claims cognizable under chapter 662;

     (9)  Provide technical services in risk management and insurance to state agencies;

    (10)  Be authorized to establish a captive insurance company pursuant to article 19 of chapter 431 to effectuate the purposes of this chapter; and

    (11)  Do all other things appropriate to the development of sound risk management practices and policies for the State."

     SECTION 6.  Section 103D-310, Hawaii Revised Statutes, is amended by amending subsection (c) to read as follows:

     "(c)  All offerors, upon award of contract, shall comply with all laws governing entities doing business in the State, including chapters 237, 383, 386, [392,] and 393.  Offerors shall produce documents to the procuring officer to demonstrate compliance with this subsection.  Any offeror making a false affirmation or certification under this subsection shall be suspended from further offerings or awards pursuant to section 103D-702.  The procuring officer shall verify compliance with this subsection for all contracts awarded pursuant to sections 103D-302, 103D-303, 103D-304, and 103D-306, and for contracts and procurements of $2,500 or more awarded pursuant to section 103D-305; provided that the attorney general may waive the requirements of this subsection for contracts for legal services if the attorney general certifies in writing that comparable legal services are not available in this State."

     SECTION 7.  Section 393‑3, Hawaii Revised Statutes, is amended by amending the definition of "wages" to read as follows:

     ""Wages" means all remuneration for services from whatever source, including commissions, bonuses, and tips and gratuities paid directly to any individual by a customer of the individual's employer, and the cash value of all remuneration in any medium other than cash.

     The director may issue [regulations] rules for the reasonable determination of the cash value of remuneration in any medium other than cash.

     If the employee does not account to the employee's employer for the tips and gratuities received and is engaged in an occupation in which the employee customarily and regularly receives more than $20 a month in tips, the combined amount received by the employee from the employee's employer and from tips shall be deemed to be at least equal to the wage required by chapter 387 or a greater sum as determined by regulation of the director.

     "Wages" does not include the amount of any payment specified in section 383‑11 [or 392‑22] or chapter 386."

     SECTION 8.  Section 398‑4, Hawaii Revised Statutes, is amended by amending subsection (c) to read as follows:

     "(c)  An employer who provides sick leave for employees shall permit an employee to use the employee's accrued and available sick leave for purposes of this chapter[; provided that an employee shall not use more than ten days per year for this purpose, unless an express provision of a valid collective bargaining agreement authorizes the use of more than ten days of sick leave for family leave purposes.  Nothing in this section shall require an employer to diminish an employee's accrued and available sick leave below the amount required pursuant to section 392-41; provided that any sick leave in excess of the minimum statutory equivalent for temporary disability benefits as determined by the department may be used for purposes of this chapter]."

     SECTION 9.  Section 431:10‑244, Hawaii Revised Statutes, is amended to read as follows:

     "§431:10‑244  Filing procedure for contracts approved by commissioner.  Each insurance contract requiring approval by the commissioner pursuant to this code[, section 392‑48,] or section 386‑124 and each contract certified by the insurer to be in conformity with this code shall be accompanied by a $20 fee payable to the commissioner, which shall be deposited into the commissioner's education and training fund."

PART IV

     SECTION 10.  Chapter 378, Hawaii Revised Statutes, is amended by amending the title of part VI, subpart C, to read as follows:

"[C.] B.  REASONABLE ACCOMMODATIONS IN THE WORKPLACE"

     SECTION 11.  Section 378‑71, Hawaii Revised Statutes, is amended as follows:

     1.  By repealing the definition of "child".

     [""Child" means an individual who is a biological, adopted, or foster son or daughter; a stepchild; or a legal ward of an employee."]

     2.  By repealing the definition of "course of conduct".

     [""Course of conduct" means acts over any period of time of repeatedly maintaining a visual or physical proximity to a person or conveying verbal or written threats, including threats conveyed through electronic communications or threats implied by conduct."]

     3.  By repealing the definition of "electronic communications".

     [""Electronic communications" includes communications via telephone, mobile phone, computer, e-mail, video recorder, fax machine, telex, or pager."]

     4.  By repealing the definition of "health care provider".

     [""Health care provider" means a physician as defined under section 386-1."]

PART V

     SECTION 12.  If any provision of this Act, or the claim thereof to any person or circumstance, is held invalid, the invalidity does not affect other provisions or claims of the Act that can be given effect without the invalid provision or claim, and to this end the provisions of this Act are severable.

     SECTION 13.  Statutory material to be repealed is bracketed and stricken.  New statutory material is underscored.

     SECTION 14.  This Act shall take effect on July 1, 3000; provided that parts II, III, and IV shall take effect on the earlier of January 1, 2029, or the start of the department of labor and industrial relations receiving claims and paying family and medical leave insurance benefits as specified under chapter    .

Report Title:

Keiki Caucus; Family and Medical Leave Insurance Program; Family and Medical Leave Insurance Benefits; Department of Labor and Industrial Relations

Description:

By 1/1/2028, requires the Department of Labor and Industrial Relations to establish a family and medical leave insurance program and begin collecting payroll contributions to finance payment of benefits.  By 1/1/2029, requires the Department to start receiving claims and paying benefits under the program.  Specifies eligibility requirements and employee protections under the program.  Effective 7/1/3000.  (HD1)

The summary description of legislation appearing on this page is for informational purposes only and is not legislation or evidence of legislative intent.

A BILL FOR AN ACT

RELATING TO PAID FAMILY LEAVE.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:

PART I

     SECTION 1.  The Hawaii Revised Statutes is amended by adding a new chapter to be appropriately designated and to read as follows:

"Chapter

PAID FAMILY AND MEDICAL LEAVE

     §   -1  Definitions.  As used in this chapter, unless the context clearly requires otherwise:

     "Application year" means the twelve-month period beginning on the first day of the calendar week in which an individual files an application for family and medical leave insurance benefits.

     "Covered individual" means:

     (1)  Any person who:

          (A)  Has been working for an employer for at least fourteen weeks during each of which the individual has received remuneration in any form for twenty or more hours and earned wages of at least $400, during the fifty-two weeks immediately prior to paid leave granted under this chapter; or

          (B)  Is self-employed, elects coverage, and meets the requirements of section    -13;

     (2)  Meets the administrative requirements outlined in this chapter and in rules adopted thereunder; and

     (3)  Submits an application.

     "Department" means the department of labor and industrial relations.

     "Director" means the director of labor and industrial relations.

     "Domestic partner" means a person at least eighteen years of age who:

     (1)  Is dependent upon the covered individual for support as shown by either unilateral dependence or mutual interdependence that is evidenced by a nexus of factors including but not limited to:

          (A)  Common ownership of real or personal property;

          (B)  Common householding;

          (C)  Children in common;

          (D)  Signs of intent to marry;

          (E)  Shared budgeting; and

          (F)  The length of the personal relationship with the covered individual; or

     (2)  Has registered as the domestic partner of the covered individual with any registry of domestic partnerships maintained by the employer of either party, or in any state, county, city, town, or village in the United States.

     "Employee" includes any individual employed by an employer.

     "Employer" shall have the same meaning as that term is defined in section 387-1; provided that "employer" shall include the State or counties or any political subdivision thereof.

     "Family leave" means leave taken pursuant to section    -2(a).

     "Family leave insurance benefits" means the benefits provided under the terms of this chapter to a covered individual while the covered individual is on family leave.

     "Family member" means:

     (1)  A biological, adopted or foster child, stepchild or legal ward, a child of a domestic partner, or a child to whom the covered individual stands in loco parentis;

     (2)  A biological, adoptive or foster parent, stepparent or legal guardian of a covered individual or a covered individual's spouse or domestic partner or a person who stood in loco parentis when the covered individual or the covered individual's spouse or domestic partner was a minor child;

     (3)  A person to whom the covered individual is legally married under the laws of any state, or a domestic partner of a covered individual; or

     (4)  A grandparent, grandchild or sibling (whether a biological, foster, adoptive or step relationship) of the covered individual or the covered individual's spouse or domestic partner.

     "Health care provider" means any person licensed under federal or state law to provide medical or emergency services, including but not limited to doctors, nurses, and emergency room personnel, or certified midwives.

     "Medical leave" means leave taken pursuant to section    -2(b).

     "Medical leave insurance benefits" means the benefits provided under the terms of this chapter to a covered individual while the covered individual is on medical leave.

     "Next of kin" shall have the same meaning as that term is defined in section 101(17) of the federal Family and Medical Leave Act (29 U.S.C. 2611(17)).

     "Qualifying exigency" means leave based on a need arising out of a covered individual's family member's active duty service or notice of an impending call or order to active duty in the armed forces, including but not limited to providing for the care or other needs of the military member's child or other family member, making financial or legal arrangements for the military member, attending counseling, attending military events or ceremonies, spending time with the military member during a rest and recuperation leave or following return from deployment, or making arrangements following the death of the military member.

     "Qualifying service member" means:

     (1)  A member of the armed forces, including a member of the national guard or reserves, who is:

          (A)  Undergoing medical treatment, recuperation, or therapy;

          (B)  Otherwise in outpatient status; or

          (C)  Is otherwise on the temporary disability retired list for a serious injury or illness that was incurred by the member in the line of duty on active duty in the armed forces, or a serious injury or illness that existed before the beginning of the member's active duty and was aggravated by service in the line of duty on active duty in the armed forces; or

     (2)  A former member of the armed forces, including a former member of the national guard or reserves, who is undergoing medical treatment, recuperation, or therapy for a serious injury or illness that was incurred by the member in line of duty on active duty in the armed forces, or a serious injury or illness that existed before the beginning of the member's active duty and was aggravated by service in line of duty on active duty in the armed forces and manifested before or after the member was discharged or released from service.

     "Retaliatory personnel action" means denial of any right guaranteed under this chapter, including but not limited to any threat, discharge, suspension, demotion, reduction of hours, any other adverse action against an employee for the exercise of any right guaranteed in this chapter, or reporting or threatening to report an employee's suspected citizenship or immigration status or the suspected citizenship or immigration status of a family member of the employee to a federal or state agency.  "Retaliatory personnel action" includes interference with or punishment for, in any manner, participating in or assisting an investigation, proceeding, or hearing under this chapter.

     "Serious health condition" is an illness, injury, impairment, pregnancy, recovery from childbirth, organ donation, termination of pregnancy, or physical or mental condition that involves inpatient care in a hospital, hospice, or residential medical care facility, or continuing treatment by a health care provider.

     "State average weekly wage" shall have the same meaning as that term is defined in section 386-1.

     §   -2  Eligibility of benefits.  (a)  Beginning January 1, 2029, family leave insurance benefits shall be payable to an individual who:

     (1)  Qualifies as a covered individual; and

     (2)  Meets one of the following requirements:

          (A)  Because of birth, adoption, or placement through foster care, is caring for a new child during the first year after the birth, adoption, or placement;

          (B)  Is caring for a family member with a serious health condition;

          (C)  Is caring for a qualifying service member who is the individual's next of kin;

          (D)  Is a victim of domestic abuse, sexual assault, or stalking who needs leave for medical attention; mental health care or other counseling; victim services, including legal services; court appearances; or relocation for themselves or a family member; or

          (E)  Has a qualifying exigency.

     (b)  Beginning January 1, 2029, medical leave insurance benefits shall be payable to an individual who:

     (1)  Qualifies as a covered individual; and

     (2)  Has a serious health condition that makes the covered individual unable to perform the functions of the covered individual's position, except accident or disease connected with or resulting from employment as defined in section 386-3 or any other applicable workers' compensation law.

     §   -3  Duration of benefits.  (a)  The maximum number of weeks during which family leave insurance benefits are payable in an application year shall be twelve weeks.

     (b)  The maximum number of weeks during which medical leave insurance benefits are payable in an application year shall be twenty-six weeks.

     (c)  The first payment of benefits shall be made to a covered individual within two weeks after the family leave begins and subsequent payments shall be made every two weeks thereafter.

     (d)  Claims may be filed up to forty-five days in advance of the family leave, if anticipation of the family leave is possible.

     §   -4  Amount of benefits.  (a)  Subject to the maximum weekly benefit amount pursuant to subsection (b), the weekly benefit shall be calculated by adding the amounts obtained by applying the following percentage to a covered individual's average weekly wage during the twelve months preceding submission of the application or the average weekly wage during the time the covered individual worked, if less than twelve months:

     (1)  Ninety per cent of wages that are equal to or less than fifty per cent of the state's average weekly wage;

     (2)  Sixty-six per cent of wages that exceed fifty per cent of the state's average weekly wage but is not more than one hundred per cent; and

     (3)  Fifty-five per cent of wages that exceed one hundred per cent of the state's average weekly wage.

     (b)  In no case shall the weekly benefit amount exceed the state average weekly wage.

     (c)  Family and medical leave insurance benefits shall not be payable for less than eight hours of family and medical leave taken in one work week.

     §   -5  Contributions.  (a)  Payroll contributions shall be authorized in order to finance the payment of benefits under and for administration and operation of the family and medical leave insurance program.

     (b)  Beginning January 1, 2028, payroll contributions shall be paid by employers and employees in an amount to be determined by the department, based on a per cent of employee wages.  The department shall be responsible for evaluating and determining on an annual basis the amount of payroll contributions necessary to finance the family and medical leave insurance benefits program.

     (c)  An employer may deduct and withhold contributions from each employee of up to fifty per cent of the amount of payroll contribution determined by the department.

     (d)  An employer with five or more employees shall remit one hundred per cent of the amount of payroll contribution determined by the department to the family and medical leave trust fund.

     (e)  An employer with fewer than five employees shall remit fifty per cent of the amount of payroll contribution determined by the department to the family and medical leave trust fund.

     (f)  A self-employed individual who is electing coverage under section    -13 shall remit fifty per cent of the amount of payroll contribution determined by the department to the family and medical leave trust fund.

     §   -6  Reduced leave schedule.  (a)  A covered individual shall be entitled, at the option of the covered individual, to take paid family and medical leave on an intermittent or reduced leave schedule in which all of the leave authorized under this chapter is not taken sequentially.  Family and medical leave insurance benefits for intermittent or reduced leave schedules shall be prorated.

     (b)  The covered individual shall provide the employer with prior notice of the schedule on which the covered individual will be taking the leave, to the extent practicable.  Paid family and medical leave taken under this section shall not result in a reduction of the total amount of leave to which an employee is entitled beyond the amount of leave actually taken.

     (c)  Nothing in this section shall be construed to entitle a covered individual to more leave than allowed under section    -3.

     §   -7  Leave and employment protection.  (a)  Any covered individual who exercises the covered individual's right to family and medical leave insurance benefits shall, upon the expiration of that leave, be entitled to be restored by the employer to the position held by the covered individual when the leave commenced, or to a position with equivalent seniority, status, employment benefits, pay, and other terms and conditions of employment, including but not limited to fringe benefits and service credits that the covered individual had been entitled to at the commencement of leave; provided that job duties and hours in the new position need not be identical to the previously-held position, but the employer shall make a reasonable effort to make them similar, at the employee's request.

     (b)  During any leave taken pursuant to section    -2, the employer shall maintain any health care benefits the covered individual had prior to taking such leave for the duration of the leave as if the covered individual had continued in employment continuously from the date the covered individual commenced the leave until the date the family and medical leave insurance benefits terminate; provided that the covered individual shall continue to pay the covered individual's share of the cost of health benefits as required prior to the commencement of the leave.

     (c)  This section shall be enforced as provided in chapter 398.

     §   -8  Retaliatory personnel actions prohibited.  (a)  It shall be unlawful for an employer or any other person to interfere with, restrain, or deny the exercise of, or the attempt to exercise, any right protected under this chapter.

     (b)  An employer, temporary help company, employment agency, employee organization, or other person shall not take retaliatory personnel action or otherwise discriminate against a person because the person exercised rights protected under this chapter.  These rights include but are not limited to the right to request, file for, apply for, or use benefits or leave provided for under this chapter; communicate to the employer or any other person or entity an intent to file a claim, a complaint with the department or courts, or an appeal; testify, plan to testify, or assist in any investigation, hearing, or proceeding under this chapter, at any time, including during the period in which the person receives family and medical leave insurance benefits under this chapter; inform any person about any employer's alleged violation of this chapter; and inform any other person of the other person's rights under this chapter.

     (c)  It shall be unlawful for an employer's absence control policy to count paid family and medical leave taken under this chapter as an absence that may lead to or result in discipline, discharge, demotion, suspension, or any other adverse action.

     (d)  Protections of this section shall apply to any person who mistakenly, but in good faith, alleges violations of this chapter.

     (e)  This section shall be enforced as provided in chapter 398.

     §   -9  Coordination of benefits.  (a)  Leave taken with wage replacement under this chapter that also qualifies as leave under the federal Family and Medical Leave Act or chapter 398 shall run concurrently with leave taken under the federal Family and Medical Leave Act or chapter 398.

     (b)  An employer may require that payment made pursuant to this chapter be made concurrently or otherwise coordinated with payment made or leave allowed under the terms of disability or family care leave under a collective bargaining agreement or employer policy.  The employer shall give employees written notice of this requirement.

     (c)  This chapter does not diminish an employer's obligation to comply with any of the following that provide more generous leave:

     (1)  A collective bargaining agreement;

     (2)  An employer policy; or

     (3)  Any other law.

     (d)  An individual's right to leave under this chapter may not be diminished by a collective bargaining agreement entered into or renewed, or an employer policy adopted or retained, after the effective date of this chapter.  Any agreement by an individual to waive the individual's rights under this chapter is void as against public policy.

     §   -10  Notice.  (a)  Each employer shall provide written notice to each employee upon hiring and annually thereafter.  An employer shall also provide written notice to an employee when the employee requests leave under this chapter, or when the employer acquires knowledge that an employee's leave may be for a qualifying reason under section    -2(a)(2).  Such notice shall include:

     (1)  The employee's right to family and medical leave insurance benefits under this chapter and the terms under which the benefits may be used;

     (2)  The amount of family and medical leave insurance benefits;

     (3)  The procedure for filing a claim for benefits;

     (4)  The procedure for selecting a designated person;

     (5)  The right to employment protection and benefits continuation under section    -7;

     (6)  That discrimination and retaliatory personnel actions against a person for requesting, applying for, or using family and medical leave insurance benefits is prohibited under section    -8; and

     (7)  That the employee has a right to file a complaint for violations of this chapter.

     (b)  An employer shall display and maintain a poster in a conspicuous place accessible to employees at the employer's place of business that contains the information required by this section in English, Ilocano, Tagalog, Japanese, and any language that is the first language spoken by at least five per cent of the employer's workforce; provided that the notice has been provided by the department.  The director may adopt rules to establish additional requirements concerning the means by which employers shall provide such notice.

     (c)  Employees shall provide notice to their employers as soon as practicable of their intention to take leave under this chapter.

     §   -11  Appeals.  (a)  The director shall establish a system for appeals in the case of a denial of family and medical leave insurance benefits.  In establishing the system, the director may utilize any and all procedures and appeals mechanisms established under section 383-38.

     (b)  Judicial review of any decision with respect to family and medical leave insurance benefits shall be permitted in a court of competent jurisdiction after an aggrieved party has exhausted all administrative remedies established by the director.

     (c)  The director shall implement procedures to ensure confidentiality of all information related to any claims filed or appeals taken to the maximum extent permitted by applicable laws.

     §   -12  Erroneous payments and disqualifications for benefits.  (a)  A covered individual shall be disqualified from family and medical leave insurance benefits for one year if the individual is determined by the director to have knowingly and wilfully made a false statement or misrepresentation regarding a material fact, or knowingly and wilfully failed to report a material fact, to obtain benefits under this chapter.

     (b)  If family and medical leave insurance benefits are paid erroneously or as a result of misrepresentation, or if a claim for family and medical leave insurance benefits is rejected after benefits are paid, the department may seek repayment of benefits and penalties from the recipient.  The amount of penalty shall not be greater than one hundred fifty per cent of the amount of benefits paid erroneously to the recipient.  The director shall exercise the director's discretion to waive, in whole or in part, the amount of any payments and penalties where the recovery would be against equity and good conscience.

     §   -13  Elective coverage.  (a)  A self-employed person, including a sole proprietor, partner, or joint venturer, may elect coverage under this chapter for an initial period of not less than three years.  The self-employed person shall file a notice of election in writing with the director, as required by the department.  The election shall become effective on the date of filing the notice.  As a condition of election, the self-employed person shall agree to supply any information concerning income that the department deems necessary.

     (b)  A self-employed person who has elected coverage may withdraw from coverage within thirty days after the end of the three-year period of coverage, or at other times as the director may prescribe by rule, by filing written notice with the director.  The withdrawal shall take effect no sooner than thirty days after filing the notice.

     §   -14  Family and medical leave insurance program.  (a)  By January 1, 2028, the department shall establish and administer a family and medical leave insurance program and begin collecting contributions as specified in this chapter.  By January 1, 2029, the department shall begin receiving claims and paying family and medical leave insurance benefits as specified in this chapter.

     (b)  The department shall establish reasonable procedures and forms for filing claims for benefits under this chapter and shall specify the necessary supporting documentation to support a claim for benefits, including any documentation required from a health care provider for proof of a serious health condition and any documentation required by the department to meet the eligibility requirements for family leave.

     (c)  The department shall notify the employer within five business days of a claim being filed pursuant to this chapter.

     (d)  The department shall use information sharing and integration technology to facilitate the disclosure of relevant information or records so long as the covered individual consents to the disclosure as required under state law.

     (e)  Information contained in the files and records pertaining to a covered individual under this chapter shall be confidential and not open to public inspection, other than to public employees in the performance of their official duties; provided that the individual or an authorized representative of an individual may review the records or receive specific information from the records upon the presentation of the individual's signed authorization.

     (f)  The director shall adopt rules as necessary to implement this chapter.

     §   -15  Federal income tax.  If the Internal Revenue Service determines that family and medical leave insurance benefits under this chapter are subject to federal income tax, the department shall advise a covered individual filing a new claim for family and medical leave insurance benefits, at the time of filing the claim, that:

     (1)  The Internal Revenue Service has determined that benefits are subject to federal income tax;

     (2)  Requirements exist pertaining to estimated tax payments;

     (3)  The individual may elect to have federal income tax deducted and withheld from the individual's payment of benefits in the amount specified in the Internal Revenue Code of 1986, as amended; and

     (4)  The individual is permitted to change a previously elected withholding status.

     §   -16  Family and medical leave trust fund.  (a)  There is established in the treasury of the State as a trust fund, separate and apart from all public moneys or funds of the State, a family and medical leave trust fund, which shall be administered by the department exclusively for the purposes of this chapter.  All contributions pursuant to this chapter shall be paid into the fund and all benefits payable pursuant to this chapter shall be paid from the fund.  All moneys in the fund shall be mingled and undivided.

     (b)  Whenever in the judgment of the director of finance there shall be in the trust fund an amount of funds in excess of that amount deemed by the director of finance to be sufficient to meet the current expenditures properly payable therefrom, the director of finance shall have full power to invest, reinvest, manage, contract, or sell or exchange investments acquired with the excess funds in the manner prescribed by law.

     (c)  On January 1, 2027, or as soon as possible thereafter, the director of finance shall transfer $           from the general fund to the family and medical leave trust fund for the purpose of defraying expenses incurred by the department, including hiring and employing personnel to perform functions relating to the establishment and administration of the family and medical leave trust fund, before the family and medical leave trust fund receives payroll contributions.

     (d)  No later than December 31, 2030, the department shall repay the loan of $           received pursuant to subsection (c).

     §   -17  Reports.  Beginning January 1, 2030, the department shall report to the legislature by April 1 of each year on projected and actual program participation in the family and medical leave insurance program and include the criteria listed in section    -2(a)(2), gender of beneficiary, premium rates, fund balances, outreach efforts, and, for leaves taken under section    -2(a)(2)(B), family members for whom leave was taken to provide care.

     §   -18  Public education.  The department shall conduct a public education campaign to inform employees and employers regarding the availability of family and medical leave insurance benefits.  Outreach information shall be available in English, Ilocano, Chuukese, Marshallese, Tagalog, Spanish, and other languages spoken by more than five per cent of the students in the department of education's English learner program.

     §   -19  Sharing technology.  The department may use state data collection and technology to the extent possible and to integrate the program with existing state policies.

     §   -20  Severability.  If any provision of this chapter or its application to any person or circumstance is held invalid, the invalidity shall not affect other provisions or applications of the chapter which can be given effect without the invalid provision or application, and to this end the provisions of this chapter are declared to be severable."

     SECTION 2.  The department shall adopt all rules necessary for implementation of this part by January 1, 2027.

PART II

     SECTION 3.  Chapter 392, Hawaii Revised Statutes, is repealed.

     SECTION 4.  Subpart B of part VI of chapter 378, Hawaii Revised Statutes, is repealed.

PART III

     SECTION 5.  Section 41D-2, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows:

     "(a)  The comptroller, through the risk manager, shall:

     (1)  Have discretion to purchase casualty insurance for the State or state agencies, including those employees of the State who, in the comptroller's discretion, may be at risk and shall be responsible for the acquisition of all casualty insurance;

     (2)  Have discretion to purchase property insurance for the State or state agencies and shall acquire all property insurance;

     (3)  Direct and manage all risk management and insurance programs of the State, except for employee benefits insurance and workers' compensation insurance programs or as otherwise provided in chapters 87A, 88, 383 to 386A, [392,] and 393;

     (4)  Consult with state agencies to determine what property, casualty, and other insurance policies are presently in force or are sought by the state agencies and to make determinations about whether to continue subscribing to insurance policies.  In the event that the risk manager's determination is not satisfactory to the state agency, the state agency may have the risk manager's decision reviewed by the comptroller.  In this case, the comptroller's decision shall be final;

     (5)  Consolidate and combine state insurance coverages, and purchase excess insurance when, in the comptroller's discretion, it is appropriate to do so;

     (6)  Acquire risk management, investigative, claims adjustment, actuarial, and other services, except attorney's services, as may be required for the sound administration of this chapter; provided that a broker submitting a proposal in response to a fixed fee solicitation by the comptroller pursuant to this subsection and the broker's performance of the activities in accordance with the proposal shall not constitute a violation of sections 431:10-218, 431:13‑102, and 431:13-103;

     (7)  Gather from all state agencies and maintain data regarding the State's risks and casualty, property, and fidelity losses;

     (8)  In conjunction with the attorney general and as otherwise provided by this chapter, compromise or settle claims cognizable under chapter 662;

     (9)  Provide technical services in risk management and insurance to state agencies;

    (10)  Be authorized to establish a captive insurance company pursuant to article 19 of chapter 431 to effectuate the purposes of this chapter; and

    (11)  Do all other things appropriate to the development of sound risk management practices and policies for the State."

     SECTION 6.  Section 103D-310, Hawaii Revised Statutes, is amended by amending subsection (c) to read as follows:

     "(c)  All offerors, upon award of contract, shall comply with all laws governing entities doing business in the State, including chapters 237, 383, 386, [392,] and 393.  Offerors shall produce documents to the procuring officer to demonstrate compliance with this subsection.  Any offeror making a false affirmation or certification under this subsection shall be suspended from further offerings or awards pursuant to section 103D-702.  The procuring officer shall verify compliance with this subsection for all contracts awarded pursuant to sections 103D-302, 103D-303, 103D-304, and 103D-306, and for contracts and procurements of $2,500 or more awarded pursuant to section 103D-305; provided that the attorney general may waive the requirements of this subsection for contracts for legal services if the attorney general certifies in writing that comparable legal services are not available in this State."

     SECTION 7.  Section 393-3, Hawaii Revised Statutes, is amended by amending the definition of "wages" to read as follows:

     ""Wages" means all remuneration for services from whatever source, including commissions, bonuses, and tips and gratuities paid directly to any individual by a customer of the individual's employer, and the cash value of all remuneration in any medium other than cash.

     The director may issue [regulations] rules for the reasonable determination of the cash value of remuneration in any medium other than cash.

     If the employee does not account to the employee's employer for the tips and gratuities received and is engaged in an occupation in which the employee customarily and regularly receives more than $20 a month in tips, the combined amount received by the employee from the employee's employer and from tips shall be deemed to be at least equal to the wage required by chapter 387 or a greater sum as determined by regulation of the director.

     "Wages" does not include the amount of any payment specified in section 383-11 [or 392-22] or chapter 386."

     SECTION 8.  Section 398-4, Hawaii Revised Statutes, is amended by amending subsection (c) to read as follows:

     "(c)  An employer who provides sick leave for employees shall permit an employee to use the employee's accrued and available sick leave for purposes of this chapter; provided that an employee shall not use more than ten days per year for this purpose, unless an express provision of a valid collective bargaining agreement authorizes the use of more than ten days of sick leave for family leave purposes.  [Nothing in this section shall require an employer to diminish an employee's accrued and available sick leave below the amount required pursuant to section 392-41; provided that any sick leave in excess of the minimum statutory equivalent for temporary disability benefits as determined by the department may be used for purposes of this chapter.]"

     SECTION 9.  Section 431:10-244, Hawaii Revised Statutes, is amended to read as follows:

     "§431:10-244  Filing procedure for contracts approved by commissioner.  Each insurance contract requiring approval by the commissioner pursuant to this code[, section 392-48,] or section 386-124 and each contract certified by the insurer to be in conformity with this code shall be accompanied by a $20 fee payable to the commissioner, which shall be deposited into the commissioner's education and training fund."

PART IV

     SECTION 10.  Chapter 378, Hawaii Revised Statutes, is amended by amending the title of part VI, subpart C, to read as follows:

"[C.] B.  REASONABLE ACCOMMODATIONS IN THE WORKPLACE"

     SECTION 11.  Section 378-71, Hawaii Revised Statutes, is amended as follows:

     1.  By repealing the definition of "child".

     [""Child" means an individual who is a biological, adopted, or foster son or daughter; a stepchild; or a legal ward of an employee."]

     2.  By repealing the definition of "course of conduct".

     [""Course of conduct" means acts over any period of time of repeatedly maintaining a visual or physical proximity to a person or conveying verbal or written threats, including threats conveyed through electronic communications or threats implied by conduct."]

     3.  By repealing the definition of "electronic communications".

     [""Electronic communications" includes communications via telephone, mobile phone, computer, e-mail, video recorder, fax machine, telex, or pager."]

     4.  By repealing the definition of "health care provider".

     [""Health care provider" means a physician as defined under section 386-1."]

PART V

     SECTION 12.  If any provision of this Act, or the application thereof to any person or circumstance, is held invalid, the invalidity does not affect other provisions or applications of the Act that can be given effect without the invalid provision or application, and to this end the provisions of this Act are severable.

     SECTION 13.  Statutory material to be repealed is bracketed and stricken.  New statutory material is underscored.

     SECTION 14.  This Act shall take effect on July 1, 2025; provided that parts II, III, and IV shall take effect on the earlier of January 1, 2029, or the start of the department of labor and industrial relations receiving claims and paying family and medical leave insurance benefits as specified under chapter    .

Report Title:

Keiki Caucus; Family and Medical Leave Insurance Program; Family and Medical Leave Insurance Benefits; Department of Labor and Industrial Relations

Description:

By 1/1/2028, requires the Department of Labor and Industrial Relations to establish a family and medical leave insurance program and begin collecting payroll contributions to finance payment of benefits.  By 1/1/2029, requires the Department to start receiving claims and paying benefits under the program.  Specifies eligibility requirements and employee protections under 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.

STAND. COM. REP. NO.  788

Honolulu, Hawaii

                , 2025

RE:   H.B. No. 755

      H.D. 2

Honorable Nadine K. Nakamura

Speaker, House of Representatives

Thirty-Third State Legislature

Regular Session of 2025

State of Hawaii

Madame:

     Your Committee on Consumer Protection & Commerce, to which was referred H.B. No. 755, H.D. 1, entitled:

"A BILL FOR AN ACT RELATING TO PAID FAMILY LEAVE,"

begs leave to report as follows:

     The purpose of this measure is to:

     (1)  By January 1, 2028, require the Department of Labor and Industrial Relations to establish and administer a Family and Medical Leave Program and begin collecting payroll contributions to finance payment of benefits; and

     (2)  By January 1, 2029, require the Department to start receiving claims and paying benefits under the Program.

     Your Committee received testimony in support of this measure from the Executive Office on Aging; Hawaiʻi State Commission on the Status of Women; one member of the Hawaiʻi County Council; Pride at Work – Hawaiʻi; Healthy Eating Active Living Coalition; Indivisible Hawaii; Hawaiʻi Family Caregiver Coalition; Aloha United Way; ALICE Initiative; Early Childhood Action Strategy; AARP Hawaiʻi; Imua Alliance; Democratic Party of Hawaiʻi Education Caucus; AAUW of Hawaii; Young Democrats of Hawaiʻi; Hawaiʻi State Coalition Against Domestic Violence; Hawaiʻi State LGBTQ+ Commission; Hawaiʻi Section of the American College of Obstetricians and Gynecologists; Catholic Charities Hawaiʻi; ACLU of Hawaiʻi; Hawaiʻi Children's Action Network Speaks!; Hawaiʻi Alliance of Nonprofit Organizations; AlohaCare; Leukemia & Lymphoma Society; Hawaiʻi Women Lawyers; Papa Ola Lokahi; and numerous individuals.  Your Committee received testimony in opposition to this measure from the United Public Workers, AFSCME Local 646, AFL-CIO; Hawaiʻi Restaurant Association; Retail Merchants of Hawaii; Tiki's Grill & Bar; Hawaii Energy Marketers Association; Grassroot Institute of Hawaii; NFIB Hawaii Chapter; Hawaii Government Employees Association, AFSCME Local 152, AFL-CIO; IL Gelato Hawaii; Society of Human Resource Management – Hawaii; Chamber of Commerce Hawaii; Gyotaku Restaurants; and one individual.  Your Committee received comments on this measure from the Department of Human Resources Development; Department of Budget and Finance; Department of Labor and Industrial Relations; Hawaii Food Industry Association; and Kapolei Chamber of Commerce.

     Your Committee finds that the United States is the only developed country that does not provide national paid family leave.  Your Committee further finds that thirteen states and the District of Columbia have passed paid family leave laws, and the states with paid family leave have seen significant health, social, and economic benefits.  Many of the State's working families do not have adequate amounts of paid leave, which causes financial hardship and increased dependency on public assistance during times of illness or caregiving.  This measure will provide working families with family and medical leave benefits, which can help workers retain employment while caring for family and help businesses retain key employees and remain competitive.

     Your Committee has amended this measure by:

     (1)  Deleting language that repealed the definitions of "child," "course of conduct," and "electronic communications" for purposes of laws relating to reasonable accommodations in the workplace for an employee who is a victim of domestic or sexual violence; and

     (2)  Making technical, nonsubstantive amendments for the purposes of clarity, consistency, and style.

     As affirmed by the record of votes of the members of your Committee on Consumer Protection & Commerce that is attached to this report, your Committee is in accord with the intent and purpose of H.B. No. 755, H.D. 1, as amended herein, and recommends that it be referred to your Committee on Finance in the form attached hereto as H.B. No. 755, H.D. 2.

Respectfully submitted on behalf of the members of the Committee on Consumer Protection & Commerce,

STAND. COM. REP. NO.  235

Honolulu, Hawaii

                , 2025

RE:   H.B. No. 755

      H.D. 1

Honorable Nadine K. Nakamura

Speaker, House of Representatives

Thirty-Third State Legislature

Regular Session of 2025

State of Hawaii

Madame:

     Your Committee on Labor, to which was referred H.B. No. 755 entitled:

"A BILL FOR AN ACT RELATING TO PAID FAMILY LEAVE,"

begs leave to report as follows:

     The purpose of this measure is to require the Department of Labor and Industrial Relations:

     (1)  By January 1, 2028, to establish a Family and Medical Leave Insurance Program and begin collecting payroll contributions; and

     (2)  By January 1, 2029, to begin receiving claims and paying benefits under the Program.

     Your Committee received testimony in support of this measure from the Office of Wellness and Resilience; Hawaiʻi State Commission on the Status of Women; one member of the Hawaiʻi County Council; two members of the Kauaʻi County Council; ACLU of Hawaiʻi; American Association of University Women of Hawaii; AARP Hawaiʻi; Catholic Charities Hawaiʻi; Chamber of Sustainable Commerce; Hawaiʻi Alliance for Progressive Action; Democratic Party of Hawaiʻi Education Caucus; Early Childhood Action Strategy; Hawaiʻi Appleseed; Hawaiʻi Family Caregiver Coalition; Hawaiʻi Children's Action Network Speaks!; Hawaiʻi Nurses' Association; Hawaiʻi State Coalition Against Domestic Violence; Hawaiʻi Workers Center; Hawaii Teamsters and Allied Workers Local 996; Healthy Eating Active Living Coalition; International Alliance of Theatrical Stage Employees Local 665; Kūpuna Caucus of the Democratic Party of Hawaiʻi; Imua Alliance; Leukemia and Lymphoma Society; Papa Ola Lōkahi; Pride at Work; Stonewall Caucus of the Democratic Party of Hawaii; and numerous individuals.  Your Committee received testimony in opposition to this measure from the 604 Hospitality Group LLC; Grassroot Institute of Hawaii; Hawaii Government Employees Association, AFSCME Local 152, AFL-CIO; United Public Workers, AFSCME Local 646, AFL-CIO; Hawaii Restaurant Association; Highway Inn; Kuleana Rum Works; Maui Chamber of Commerce; Retail Merchants of Hawaii; Society of Human Resource Management-Hawaii; and Tiki's Grill and Bar.  Your Committee received comments on this measure from the Department of Human Resources Development; Department of Labor and Industrial Relations; Kapolei Chamber of Commerce; and one individual.

     Your Committee finds that Hawaii's working families are not adequately supported during times of caregiving and illness.  While the federal Family and Medical Leave Act 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.  Your Committee believes this measure ensures that employees in Hawaii are provided family and medical leave insurance benefits when they need to provide care for their families.

     Your Committee amended this measure by:

     (1)  Removing the definition of "application year" and replacing the term with "benefit year";

     (2)  Inserting a definition of "benefit year";

     (3)  Replacing the term "application" with "claim", to eliminate ambiguity;

     (4)  Adjusting the minimum earning requirement for a covered individual from $400 to $5,040, to reflect what the minimum wage will be in 2028;

     (5)  Inserting a definition of "designated person" and including this term in the definition of "family member";

     (6)  Including the spouse or domestic partner of a covered individual's sibling in the definition of "family member";

     (7)  Inserting a definition of "wage";

     (8)  Clarifying when family and medical leave insurance benefits must first be paid and how often;

     (9)  Specifying a deadline to file a claim for family and medical leave insurance benefits;

     (10) Clarifying that family and medical leave insurance benefits will not be payable until the covered individual accrues at least eight hours of family and medical insurance benefits leave;

     (11) Removing language that would have limited the sequential use of accrued family and medical leave hours;

     (12) Adding language to clarify that this measure does not conflict with the Employee Retirement Income Security Act and the Prepaid Health Care Act;

     (13) Adding language to prevent simultaneous payments for vacation, sick, or other earned leave benefits and for family and medical leave insurance benefits when a covered individual uses accrued leave while receiving family and medical leave insurance benefits;

     (14) Clarifying that family and medical leave insurance benefits may be subject to federal income tax but are not subject to state income tax;

     (15) Authorizing the use of funds from the Family and Medical Leave Trust Fund to establish information technology and data systems for the Family and Medical Leave Program;

     (16) Repealing statutory language that prohibits an employee from using accrued sick leave for family leave purposes;

     (17) Changing the effective date to July 1, 3000, to encourage further discussion; and

     (18) Making technical, nonsubstantive amendments for the purposes of clarity, consistency, and style.

     Your Committee respectfully requests your Committee on Consumer Protection & Commerce, should it deliberate on this measure, to consider the establishment of 120 positions required for the Department of Labor and Industrial Relations to successfully administer this program, as requested by the Department of Labor and Industrial Relations in written testimony.

     As affirmed by the record of votes of the members of your Committee on Labor that is attached to this report, your Committee is in accord with the intent and purpose of H.B. No. 755, as amended herein, and recommends that it pass Second Reading in the form attached hereto as H.B. No. 755, H.D. 1, and be referred to your Committee on Consumer Protection & Commerce.

Respectfully submitted on behalf of the members of the Committee on Labor,