Report Title:

Paid Family Leave; TDI

Description:

Provides up to six weeks of paid family leave as temporary disability benefits for an employee to care for a family member with a serious health condition or to care for a child upon the birth or adoption of a child. The temporary disability benefits for family leave shall be financed through employee contributions.

HOUSE OF REPRESENTATIVES

H.B. NO.

30

TWENTY-SECOND LEGISLATURE, 2003

 

STATE OF HAWAII

 


 

A BILL FOR AN ACT

 

relating to TEMPORARY DISABILITY INSURANCE.

 

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

SECTION 1. Existing law provides for the payment of temporary disability benefits for wage loss sustained by an individual because of a disabling nonoccupational sickness, pregnancy, termination of pregnancy, or injury from an accident that is not compensable under workers' compensation. Qualifying disabled employees can receive temporary disability benefits for up to twenty-six weeks. The benefits are financed through contributions to the special fund for disability benefits.

The legislature finds that similar compensation should be extended to employees qualifying for family leave pursuant to chapter 398, Hawaii Revised Statutes. Employees taking family leave are also unable to work because they need to care for a family member with a serious health condition or require time to care for a child upon the birth or adoption of a child.

The purpose of this Act is to amend the temporary disability insurance law to provide up to six weeks of wage replacement benefits to workers who take time off from work pursuant to chapter 398, Hawaii Revised Statutes, to care for a family member with a serious health condition or to care for a child upon the birth or adoption of a child. Temporary disability benefits for family leave would be provided through employee contributions.

SECTION 2. Chapter 392, Hawaii Revised Statutes, is amended by adding a new section to be appropriately designated and to read as follows:

"392- Unlawful actions. (a) It shall be unlawful for any person to:

(1) Falsely certify the medical condition of any person to obtain temporary disability insurance benefits for the person falsely certifying or for any other person;

(2) Knowingly present or cause to be presented any false or fraudulent written or oral material statement in support of any claim for temporary disability insurance;

(3) Knowingly solicit, receive, offer, pay, or accept any rebate, refund, commission, preference, patronage, dividend, discount, or other consideration, whether in the form of money or otherwise, as compensation or inducement for soliciting a claimant to apply for temporary disability insurance unless the payment is otherwise lawful; or

(4) Knowingly assist, abet, solicit, or conspire with any person who engages in an unlawful act under this section.

(b) In addition to any fine incurred pursuant to section 392-92, any person who is found to have violated this section shall be fined not more than $ for each offense."

SECTION 3. Section 392-3, Hawaii Revised Statutes, is amended by adding five new definitions to be appropriately inserted and to read as follows:

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

"Family leave" means a leave of absence from employment to care for a family member with a serious health condition or to care for a child upon the birth or adoption of a child as provided by chapter 398.

"Family member" means a child; biological, foster, or adoptive parent; parent-in-law; stepparent; legal guardian; grandparent; grandparent-in-law; spouse; or reciprocal beneficiary.

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

"Serious health condition" means a physical or mental condition that warrants the participation of the employee to provide care during the period of treatment or supervision by a health care provider, and:

(1) Involves inpatient care in a hospital, hospice, or residential health care facility; or

(2) Requires continuing treatment or continuing supervision by a health care provider."

SECTION 4. Section 392-2, Hawaii Revised Statutes, is amended to read as follows:

"[[]392-2[]] Findings and purpose. [A] Each year, a large portion of the labor force of this State [annually] is disabled from pursuing gainful employment by reason of nonoccupational sickness or accident [and as]. As a result, the disabled employee suffers serious loss of income. In approximately ten per cent of the cases [such], the sickness or accident can be expected to cause disability [of more than one week's duration.] lasting longer than one week. More than two-fifths of the employees in private employment have either no fixed legal protection against wage loss from disabling nonoccupational sickness or accident, or only protection for a period of one workweek or less; more than one-third of the workers covered by formal sick leave plans are not protected against disability extending beyond two workweeks.

Since the hardship for workers and their families mounts with the extension of the duration of the disability from whatever cause, there is a need to fill the existing gaps in protection and to provide benefits to individuals in current employment that will afford [to] them reasonable compensation for wage loss caused by disabling nonoccupational sickness or accident where the disability is temporary in nature and [exceeds the period of one workweek.] lasts longer than one workweek.

Similar benefits should be extended to employees qualifying for family leave pursuant to chapter 398. Employees taking family leave are also unable to work because they need to care for a family member with a serious health condition or require time to care for a child upon the birth or adoption of a child.

This legislation is designed not to impede the growth of voluntary plans [which] that afford additional protection.

This chapter shall be liberally construed in the light of the stated reasons for its enactment and its declared purpose."

SECTION 5. Section 392-3, Hawaii Revised Statutes, is amended by amending the definition of "disability" to read as follows:

""Disability" means the total inability of an employee to perform the duties of the employee's employment [caused]:

(1) Caused by sickness, pregnancy, termination of pregnancy, or accident other than a work injury as defined in section 386-3[.]; or

(2) When the employee takes family leave."

SECTION 6. Section 392-6, Hawaii Revised Statutes, is amended to read as follows:

"392-6 Individual in current employment. ["Individual in current employment"] As used in this chapter, "individual in current employment" means:

(1) An individual who performed regular service in employment immediately or not longer than two weeks prior to the onset of the sickness or to the accident causing disability and who would have continued in or resumed employment except for such disability[.];

(2) An individual who performed regular service in employment immediately or not longer than two weeks prior to becoming totally disabled from performing the duties of her employment because of pregnancy or termination of pregnancy and who would have continued in or resumed such employment except for such disability[.]; or

(3) An individual who performed regular service in employment immediately or not longer than two weeks prior to taking family leave and who would have continued in or resumed employment except for the family leave."

SECTION 7. Section 392-21, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows:

"(a) Any individual in current employment who [suffers]:

(1) Suffers disability resulting from accident, sickness, pregnancy, or termination of pregnancy, except accident or disease connected with or resulting from employment as defined in section 386-3 or any other applicable workers' compensation law[,]; or

(2) Is unable to work because the employee is on family leave,

shall be entitled to receive temporary disability benefits in the amount and manner provided in this chapter."

SECTION 8. Section 392-23, Hawaii Revised Statutes, is amended to read as follows:

"[[]392-23[]] Duration of benefit payments. (a) Temporary disability benefits shall be payable for any period of disability following the expiration of the waiting period required in section 392-24.

(b) The duration of benefit payments shall not exceed twenty-six weeks for any period of disability or during any benefit year[.] for an employee receiving benefit payments for the individual's own disability.

(c) The duration of benefit payments for an employee who is unable to work because the employee is on family leave shall not exceed six weeks for any period of family leave or during any benefit year.

As a condition of an employee's initial receipt of benefit payments for family leave during any twelve-month period in which an employee is eligible for these benefits, an employer may require an employee to take up to two weeks of earned but unused vacation leave prior to the employee's initial request of these benefits. If an employer requires an employee to take vacation leave, that portion of the vacation leave that does not exceed one week shall be applied to the waiting period required by section 392-24."

SECTION 9. Section 392-25, Hawaii Revised Statutes, is amended to read as follows:

"392-25 Eligibility for benefits. (a) An individual [is] shall be eligible to receive temporary disability benefits [if] for the individual's own disability; provided that the individual has been [in employment] employed 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 preceding the first day of disability.

(b) An individual shall be eligible to receive temporary disability benefits while on family leave; provided that the individual has:

(1) Been employed for at least fourteen weeks during 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 preceding the first day of disability; and

(2) Made contributions for the employee's temporary disability insurance benefits as provided for in this chapter."

SECTION 10. Section 392-26, Hawaii Revised Statutes, is amended to read as follows:

"392-26 Care by physician or equivalent required[.]; certification. (a) An individual shall be ineligible to receive temporary disability benefits with respect to any period during which [the]:

(1) The individual is not under the care of a person duly licensed to practice medicine, surgery, dentistry, chiropractic, osteopathy, or naturopathy, who shall certify, in the form and manner specified by [regulation of] rules adopted by the [director,] department pursuant to chapter 91, the disability of the claimant, the probable duration thereof, and such other medical facts within the person's knowledge as required by regulation[.]; or

(2) The individual has not submitted certification that the individual has taken family leave as follows:

(A) For the birth of a child, certification shall be issued by a health care provider or the family court;

(B) For the placement of a child for adoption with the employee, certification shall be issued by a recognized adoption agency, the attorney handling the adoption, or by the individual officially designated by the birth parent to select and approve the adoptive family; and

(C) To care for a family member who has a serious health condition, certification shall be issued by the health care provider of the individual requiring care.

Certification shall be considered sufficient if it provides information in the form and manner specified by rules adopted by the department pursuant to chapter 91.

(b) [This section] Subsection (a) shall not apply to an individual who, pursuant to the teachings, faith, or belief of any group, depends for healing upon prayer or other spiritual means. In that case the disability, the probable duration thereof, and any other pertinent facts required to be certified by regulation of the director shall be certified, in the form and manner specified by the regulation, by a duly authorized or accredited practitioner of such group.

(c) The proof of disability duly certified by [a]:

(1) A person licensed to practice medicine, surgery, dentistry, chiropractic, osteopathy, or naturopathy[, or an];

(2) A health care provider or the family court to certify the birth of a child;

(3) A recognized adoption agency, attorney handling the adoption, or the individual officially designated by the birth parent to select and approve the adoptive family to certify the placement of a child for adoption;

(4) A health care provider of the individual requiring care to certify leave to care for a family member who has a serious health condition; or

(5) An authorized or accredited practitioner of any group, which depends for healing upon prayer or other spiritual means,

shall be submitted by [such] the certifying person to the disabled employee within seven working days after the date on which the employee was examined and found disabled.

If the certifying person fails to submit the required proof within seven working days, the director, upon notification by the insurer, may levy a penalty of $25 for each delinquent certification where the certifying person fails to show good cause for the person's failure to file on time."

SECTION 11. Section 392-43, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows:

"(a) Subject to the limitation set forth in subsection (b) an employer may deduct and withhold contributions, from each employee of [one-half]:

(1) One-half the cost but not more than .5 per cent of the weekly wages earned by the employee in employment, and the employer shall provide for the balance of the cost of providing temporary disability benefits under this chapter over the amount of contributions of the employer's employees[.], for individuals receiving temporary disability benefits for the individual's own disability; and

(2) Up to one hundred per cent of the cost for providing temporary disability benefits under this chapter for individuals receiving temporary disability benefits for family leave.

Unless [a different rule is prescribed by regulation of the director,] otherwise prescribed by rules adopted by the department, the withholding period shall be equal to the pay period of the respective employee."

SECTION 12. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 13. This Act shall take effect upon its approval.

INTRODUCED BY:

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