Entitles domestic violence, sexual assault, and stalking victims to paid or unpaid employment leave.
HOUSE OF REPRESENTATIVES
TWENTY-SECOND LEGISLATURE, 2003
STATE OF HAWAII
A BILL FOR AN ACT
RELATING TO HAWAII VICTIMS LEAVE ACT.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:
SECTION 1. The purpose of this Act is to:
(1) Promote the State's interest in reducing domestic violence, sexual assault, and stalking by enabling victims of domestic or sexual violence to maintain the financial independence necessary to leave abusive situations, achieve safety, minimize the physical and emotional injuries from domestic or sexual violence, and reduce the devastating economic consequences of domestic or sexual violence to employers and employees;
(2) Promote the State's interest in ensuring that victims of domestic or sexual violence can recover from and cope with the effects of such violence and participate in criminal and civil justice processes, without fear of adverse economic consequences from their employers; and
(3) Ensure that victims of domestic or sexual violence can recover from the effects of such violence and participate in criminal and civil justice processes, without fear of adverse economic consequences.
SECTION 2. Chapter 378, Hawaii Revised Statutes, is amended by adding a new section to be appropriately designated and to read as follows:
"§378-A Leave of absence for domestic or sexual violence. (a) An employee may take up to thirty days paid or unpaid leave from work per fiscal year if the employee or the employee's minor child is a victim of domestic or sexual violence; provided the leave is to:
(1) Seek medical attention for the employee to recover from physical or psychological injury or disability caused by domestic or sexual violence;
(2) Obtain services from a victim services organization;
(3) Obtain psychological or other counseling;
(4) Temporarily or permanently relocate; or
(5) Take legal action, including preparing for or participating in any civil or criminal legal proceeding related to or resulting from the domestic or sexual violence, or other actions to enhance the physical, psychological, or economic health or safety of the employee or the employee's minor child or to enhance the safety of those who associate with or work with the employee.
(b) An employee's absence from work that is demonstrated to be due to or resulting from domestic abuse or sexual violence against the employee or the employee's minor child as provided in this section shall be considered by an employer to be a justification for leave, with or without pay, for a reasonable period of time.
"Reasonable period of time" as used in this section means:
(1) Where due to physical or psychological injury or disability to the employee, the period of time determined to be necessary by the attending physician or other treating medical professional, considering both the employee's condition and the job requirements; and
(2) Where due to an employee's need to take legal or other actions, including preparing for or participating in any civil or criminal legal proceeding, obtaining services from a victim services organization, or permanently or temporarily relocating, the period of time necessary to complete the activity as determined by the employee's or employee's minor child's attorney or advocate, court, or personnel of the relevant victim services organization.
(c) Where an employee is a victim of domestic or sexual violence and seeks leave for medical attention to recover from physical or psychological injury or disability caused by domestic or sexual violence, the employer may request that the employee provide:
(1) A doctor's certificate estimating the number of leave days necessary and the estimated commencement and termination dates of leave required by the employee; and
(2) Prior to the employee's return, a medical certificate from the employee's attending physician attesting to the employee's condition and approving the employee's return to work.
(d) Where an employee has taken leave for non-medical reasons, the employer may require, after five days total leave in a twelve-month period, that the employee provide certification to the employer, within a reasonable period after the employer's written request, that the employee or the employee's minor child is a victim of domestic or sexual violence and the leave is for one of the purposes enumerated in subsection (a). The certification shall be provided by one of the following methods:
(1) A signed written statement from an employee, agent, or volunteer of a victim services organization, from the employee's attorney or advocate, from a minor child's attorney or advocate, from a member of the clergy, or a medical or other professional from whom the employee or the employee's minor child has sought assistance related to the domestic or sexual violence;
(2) A police or court record related to the domestic or sexual violence; or
(3) Other corroborating evidence related to the domestic or sexual violence.
(e) The employee shall provide the employer with reasonable notice of the employee's intention to take the leave, unless providing that notice is not practicable.
(f) Nothing in this section shall be construed to prohibit an employer from requiring an employee on leave to report not less than once a week to the employer on the status of the employee and intention of the employee to return to work.
(g) The employer shall allow the leave under this section to be taken intermittently or on a reduced work schedule.
(h) An employee who is entitled to take paid or unpaid leave (including family, medical, sick, annual, personal, or similar leave) from employment, pursuant to federal, state, or county law, or pursuant to an employment agreement, a collective bargaining agreement, or an employment benefits program or plan, may elect to substitute any period of the leave for an equivalent period of leave provided for under this section.
(i) Upon return from leave under this section, the employee shall return to the employee's original job or to a position of comparable status and pay, without loss of accumulated service credits and privileges, except that nothing in this subsection shall be construed to entitle any restored employee to the accrual of:
(1) Any seniority or employment benefits during any period of leave, unless the seniority or benefits would be provided to a similarly situated employee who was on leave due to a reason other than domestic or sexual violence; or
(2) Any right, benefit or position of employment to which the employee would not have otherwise been entitled.
(j) All information provided to the employer under this section, including statements of the employee, or any other documentation, record, or corroborating evidence, and the fact that the employee or employee's minor child has been a victim of domestic or sexual violence or the employee has requested leave pursuant to this section shall be maintained in the strictest confidence by the employer, and shall not be disclosed except to the extent that disclosure is:
(1) Requested or consented to by the employee;
(2) Ordered by a court or administrative agency; or
(3) Otherwise required by applicable federal or state law.
(k) Any employee injured by a violation of this section shall have a private right of action against an employer to enforce this section and recover costs, including reasonable attorney's fees, incurred in the civil action."
SECTION 3. Chapter 378, Hawaii Revised Statutes, is amended by adding a new section to be appropriately designated and to read as follows:
"§378-B Effect on employment and collective bargaining agreements; benefits. (a) Nothing in section 378-A shall be construed to supersede any provision of any employment agreement, collective bargaining agreement, or employment benefits program or plan that provides greater benefits or rights than those benefits or rights established under section 378-A.
(b) The rights established under section 378-A shall not be diminished by any employment agreement, collective bargaining agreement, or employment benefits program or plan."
SECTION 4. Section 378-1, Hawaii Revised Statutes, is amended by adding seven new definitions to be appropriately inserted and to read as follows:
""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.
"Domestic abuse" means conduct defined in section 586-1.
"Domestic or sexual violence" means domestic abuse, sexual assault, or stalking.
"Electronic communications" includes communications via telephone, mobile phone, computer, e-mail, video recorder, fax machine, telex, or pager.
"Sexual assault" means any conduct proscribed by chapter 707, part V.
"Stalking" means engaging in a course of conduct directed at a specifically targeted person that would cause a reasonable person to suffer substantial emotional distress or to fear bodily injury, sexual assault, or death to the person or to the person's spouse, parent, child, or any other person who regularly resides in the person's household, and where the conduct does cause the targeted person to have such distress or fear.
"Victim services organization" includes:
(1) A nonprofit, nongovernmental organization that provides assistance to victims of domestic or sexual violence or to advocates for such victims, including a rape crisis center;
(2) An organization carrying out a domestic violence program;
(3) An organization operating a shelter or providing counseling services;
(4) A legal services organization;
(5) An organization providing assistance through the legal process; or
(6) A domestic violence coalition or a sexual assault coalition."
SECTION 5. 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, which can be given effect without the invalid provision or application, and to this end the provisions of this Act are severable.
SECTION 6. New statutory material is underscored.
SECTION 7. This Act shall take effect on January 1, 2004.