HOUSE OF REPRESENTATIVES
THIRTY-FIRST LEGISLATURE, 2021
STATE OF HAWAII
A BILL FOR AN ACT
relating to family leave.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:
SECTION 1. The legislature finds that Hawaii's working families are not adequately supported during times of caregiving and illness. According to a 2018 report commissioned by Aloha United Way, entitled "ALICE [Asset Limited, Income Constrained, Employed] a Study of Financial Hardship in Hawaii", forty-two per cent of families in Hawaii are living paycheck to paycheck. While the federal Family and Medical Leave Act of 1993 allows twelve weeks of unpaid leave to employees who have worked at a business that employs fifty or more employees, the majority of Hawaii's workforce cannot afford to take unpaid leave to care for a new child or attend to the needs of a family member with a serious health condition. Hawaii law, which offers a modest four-week extension of unpaid leave, is available only to employees of large employers with more than one hundred employees.
The legislature further finds that in 2018, only seventeen per cent of workers in the United States have access to paid family leave through their employers. Women, as primary caregivers of infants, children, and elderly parents, are disproportionately affected by the absence of paid family and medical leave. According to AARP Hawaii, there are approximately 157,000 unpaid family caregivers in the State. Hawaii has one of the fastest growing populations over the age of sixty-five in the nation; from 2020 to 2030 the percentage of people age sixty-five and over is expected to go from 19.1 per cent of the State's population to 22.5 per cent. Nearly a third of those who need but do not have access to family leave will need the time off to care for an ill spouse or elderly parent.
The legislature additionally finds that the virus known as SARS-CoV-2 causes a disease named coronavirus disease 2019 (COVID-19), which spread globally and was declared a pandemic by the World Health Organization on March 11, 2020. Upon reaching Hawaii's shores, COVID-19 became a public health emergency that infected thousands of people, overburdened hospital capacities, created medical supply shortages, and claimed the lives of numerous Hawaii residents. Enacting a comprehensive family leave program would allow employees whose family members are impacted by serious health conditions to provide adequate care for their loved ones.
The purpose of this Act is to ensure that employees in Hawaii are provided family leave insurance benefits during times when they need to provide care for their families.
SECTION 2. Chapter 398, Hawaii Revised Statutes, is amended by adding ten new sections to be appropriately designated and to read as follows:
"§398- Family leave insurance program. (a) The department shall establish and administer a family leave insurance program and pay family leave insurance benefits as specified in this chapter.
(b) The department shall establish procedures and forms for filing claims for family leave insurance benefits.
(c) The information collected and the files and records retained about a covered individual pursuant to this chapter, including the existence of a claim, shall be confidential and shall not be open to inspection; provided that:
(1) An employee who applied for family leave insurance benefits or that employee's representative, upon presentation of an authorization signed by the employee to the department, shall be allowed to review any information, files, and records obtained by the department;
(2) A public employee acting within the scope of the public employee's official duties shall be permitted to review the minimum necessary information, files, and records to accomplish the public employee's purpose for reviewing the information, files, and records; and
(3) The department shall notify an employee's employer that an employee filed a claim pursuant to this chapter within days after the claim has been filed.
§398- Notice to employers. (a) An employer may require an eligible employee to give the employer written notice at least thirty days before commencing a period of family leave, medical leave, or safe leave.
(b) An eligible employee may commence leave without thirty days advance notice if the leave is not foreseeable, as in circumstances including but not limited to:
(1) An unexpected serious health condition of the employee or a family member of the employee; or
(2) A premature birth, unexpected adoption, or unexpected foster placement by or with the employee.
(c) If an eligible employee commences leave without prior notice under subsection (b), the employee shall give oral notice to the employer within twenty‑four hours of the commencement of the leave and shall provide the written notice required under subsection (a) within three days after the commencement of leave.
§398- Employment protection; retaliation prohibited. After returning to work after a period of family leave, an eligible employee shall be entitled to be restored to the position of employment held by the employee when the leave commenced, if that position still exists, without regard to whether the employer filled the position with a replacement worker during the period of leave. If the position held by the employee at the time the leave commenced no longer exists, the employee shall be entitled to be restored to any available equivalent position with equivalent employment benefits, pay, and other terms and conditions of employment.
§398- Family leave insurance fund; family leave insurance benefits. (a) There is established an insurance fund to be known as the family leave insurance fund. The family leave insurance fund shall be used to provide a covered individual with up to sixteen weeks per calendar year of paid family leave.
(b) The family leave insurance fund shall consist of employer and employee contributions based on the employee's average weekly wage, interest earned, income, dividends, refunds, rate credits, and other returns received by the fund. The taxable rate of the contribution shall be in accordance with the contribution rate to the temporary disability insurance fund.
(c) The family leave insurance fund shall be under the control of and administered by the department. All sums contributed or paid from any source to the family leave fund, and all assets of the fund including all interest and earnings, shall be held by the department for the exclusive use and benefit of the employee‑beneficiaries. The fund shall be used to finance benefits, administration, outreach, and education or study of family leave insurance. The fund shall not be subject to appropriation for any other purpose.
§398- Eligibility for payment of benefits. Family leave insurance benefits shall be payable to an:
(1) Employed covered individual; or
(2) Unemployed covered individual who 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 having a serious health condition;
(C) Is caring for a qualifying service member who is the employee's next of kin; or
(D) Has a qualifying exigency.
§398- Report to the legislature. The department shall submit an annual report to the legislature no later than twenty days prior to the convening of each regular session, beginning with the regular session of 2022, on any outreach efforts and projected and actual program participation, including the percentage of covered employees who received family leave insurance benefits, premium rates, and fund balances under the family leave insurance program established pursuant to this chapter.
§398- Outreach and education. The department shall conduct a public outreach and education campaign to inform employees and employers of the availability of family leave insurance benefits. The department may use a portion of the funds collected in a given year for the family leave insurance program to pay for the public education program; provided that the department shall use no more than per cent per year or $ per year, whichever is greater, for the public education program. Outreach information shall be available in English and other languages spoken within the State.
§398- Coverage of self-employed. (a) A self-employed person, including a sole proprietor, partner, or joint venture partner, may elect coverage under this chapter by filing a notice of election in writing with the director, as required by the department, as follows:
(1) For an initial period of not less than three years; and
(2) Following the initial coverage period, no less than one additional year of coverage;
provided that the election shall take effect on the date of filing the notice.
(b) A self-employed person who has elected coverage may withdraw from coverage within thirty days after the end of the initial period of coverage, or at other times as the director may prescribe by rule, by filing with the director a notice in writing, as required by the department. The withdrawal shall take effect no sooner than thirty days after filing the notice.
§398- Wage withholding. (a) An employer may deduct and withhold contributions from each employee of up to one‑half the cost of providing family leave insurance benefits, and the employer shall provide for the remaining cost over the amount of contributions of the employer's employees.
(b) If there is a dispute between the employee and the employer relating to the withholding of wages as contributions for family leave insurance benefits, either party may file with the director a petition for determination of the amount to be withheld. The matter shall be determined by an officer of the department. If either an employer or employee is dissatisfied with the department's determination, the aggrieved party may appeal the petition for redetermination pursuant to the procedure under part V of chapter 392.
§398- Weekly benefit amount. (a) The weekly benefit amount shall be calculated as follows:
(1) If the individual's average weekly wage is fifty per cent or less of the state average weekly wage, the individual's weekly benefit shall be ninety per cent of the individual's average weekly wage;
(2) If the individual's average weekly wage is more than fifty per cent and less than one hundred per cent of the state average weekly wage, the individual's weekly benefit shall be seventy-five per cent of the individual's average weekly wage; or
(3) If the individual's average weekly wage is one hundred per cent or more of the state average weekly wage, the individual's weekly benefit shall be fifty per cent of the individual's average weekly wage.
(b) In no case shall the weekly benefit amount exceed the maximum weekly benefit amount of $1,000."
SECTION 3. Section 398-1, Hawaii Revised Statutes, is amended as follows:
1. By adding five new definitions to be appropriately inserted and to read:
""Covered individual" means any person who:
(1) Is an employee or is currently unemployed but has been an employee within the last twenty-six weeks;
(2) Meets the requirements set forth in section 392-25 and the requirements in the rules implemented pursuant to this chapter; and
(3) Submits an application for family leave insurance benefits to the department.
"Designated person" means a family member designated by a covered individual for whom the covered individual will provide care under this chapter if the family member has a serious health condition.
"Family leave insurance benefits" means the benefits provided pursuant to this chapter.
"Family member" means a child; parent; person to whom the covered individual is legally married under the laws of any state; biological, foster, or adopted sibling; the spouse or reciprocal beneficiary of a sibling; or a reciprocal beneficiary.
"Qualifying exigency" means a circumstance arising from a notice of deployment of a service member received within seven days of deployment, or mandatory attendance of military events or related activities by the covered individual or the covered individual's family member that requires the covered individual to:
(1) Provide child care or attend school activities, if due directly or indirectly to the active duty call or active duty status of a service member;
(2) Make financial or legal arrangements for a service member's absence or as a result of the service member's absence;
(3) Attend counseling provided by someone other than a health care provider if the need for counseling arises from the active duty call or active duty of a service member; or
(4) Spend up to five days with a service member for each instance of short-term, temporary rest and recuperation leave during a period of deployment."
2. By amending the definition of "child" to read:
""Child" means an individual
who is a biological, adopted, or foster son or daughter; a stepchild; [
a legal ward of [ an employee.] a covered individual; a child of a reciprocal
beneficiary; a grandchild; a child of a covered individual who stands in loco parentis;
or a hanai parent."
3. By amending the definition of "employer" to read:
""Employer" means any
individual or organization, including the State, any of its political
subdivisions, any instrumentality of the State or its political subdivisions,
any partnership, association, trust, estate, joint stock company, insurance
company, or corporation, whether domestic or foreign, or receiver or trustee in
bankruptcy, or the legal representative of a deceased person, who employs one [
or more employees for each working day during each of twenty or more calendar
weeks in the current or preceding calendar year."
4. By amending the definition of "parent" to read:
""Parent" means a biological,
foster, or adoptive parent, a parent-in-law, a stepparent, a legal guardian, a
or] a grandparent-in-law[ .], a parent or grandparent
of a reciprocal beneficiary, or a person who stands in loco parentis for a minor
SECTION 4. Section 398-3, Hawaii Revised Statutes, is amended as follows:
1. By amending subsection (a) to read:
An employee] A covered individual
shall be entitled to a total of [ four] sixteen weeks of family
leave during any calendar year:
(1) Upon the birth
of a child of the employee or the adoption of a child; or (2) To care for the
employee's child, spouse, reciprocal beneficiary, sibling, grandchild, or
parent with a serious health condition.]
(1) To care for the covered individual's child within twelve months of the child's birth, foster placement with the covered individual, or placement for adoption with the covered individual; or
(2) To care for a covered individual's family member with a serious health condition."
2. By amending subsection (e) to read:
"(e) Nothing in this chapter shall entitle [
employee] a covered individual to more than a total of [ four]
sixteen weeks of leave in any twelve-month period."
SECTION 5. Section 398-4, Hawaii Revised Statutes, is amended to read as follows:
"§398-4 Unpaid leave permitted;
relationship to paid leave; sick leave.
(a) Pursuant to section 398-3, [
employee] a covered individual shall be entitled to [ four] sixteen
weeks of family leave. [ The family
leave shall consist of unpaid leave, paid leave, or a combination of paid and unpaid
leave. If an employer provides paid
family leave for fewer than four weeks, the additional period of leave added to
attain the four-week total may be unpaid.] An employer who provides paid
family leave beyond what is required by this chapter may require that the leave
run concurrently with the sixteen weeks required under this chapter; provided that
the employer shall not require the leave to be applied against accrued sick or
Except as otherwise provided in subsection (c), [
an employee] a
covered individual may elect to substitute any of the [ employee's] covered
individual's accrued paid leaves, including but not limited to vacation,
personal, or family leave for any part of the [ four-week] sixteen-week
period in subsection (a).
(c) An employer who provides sick leave for
employees shall permit an employee to use the employee's accrued and available
sick leave for purposes of this chapter; provided that an employee shall not
use more than ten days per year for this purpose, unless an express provision
of a valid collective bargaining agreement authorizes the use of more than ten
days of sick leave for family leave purposes.
Nothing in this section shall require an employer to diminish an
employee's accrued and available sick leave below the amount required pursuant
to section 392-41; provided that any sick leave in excess of the minimum
statutory equivalent for temporary disability benefits as determined by the
department may be used for purposes of this chapter.]
(c) No assignment, pledge, or encumbrance of any right to benefits that is or may become due or payable under this chapter shall be valid; and any right to benefits shall be exempt from levy, execution, attachment, garnishment, or any other remedy whatsoever provided for the collection of debt. No waiver of any exemption in this section shall be valid.
(d) Nothing in this chapter shall prevent a biological mother who is receiving temporary disability benefits for recovery from childbirth from applying for and receiving paid family leave for the purpose of caregiving and bonding with her child after the temporary disability time period has lapsed. For family leave purposes, there shall be no waiting period for benefits to begin.
(e) Benefits under the Family and Medical Leave Act of 1993 shall run concurrently with benefits under this chapter."
SECTION 6. Section 398-21, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows:
"(a) Any individual claiming to be aggrieved by an alleged unlawful act under this chapter, including the denial of family leave insurance benefits, may file with the department a verified complaint in writing."
SECTION 7. Section 398-23, Hawaii Revised Statutes, is amended by amending subsection (d) to read as follows:
"(d) If the department determines after investigation
that this chapter has been violated[
,] by an employer, the
department shall inform the employer and endeavor to remedy the violation by informal
methods, such as conference or conciliation. If the department determines that family
medical leave insurance benefits have been wrongfully withheld, the department
shall order immediate payment to the covered individual found to be entitled to
SECTION 8. Section 398-24, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows:
"(a) Upon appeal by a complainant by the employer, the order issued by the department shall be subject to a de novo review by a hearings officer appointed by the director."
SECTION 9. Section 398-26, Hawaii Revised Statutes, is amended by amending subsection (b) to read as follows:
"(b) Relief under this section may include:
(1) The amount of any family leave insurance benefits, wages, salary, employment benefits, or other compensation denied or lost to the employee by reason of the violation; or
(2) In a case in which family leave insurance benefits, wages, salary, employment benefits, or other compensation have not been denied or lost to the employee, any actual monetary losses sustained by the employee as a direct result of the violation, such as the cost of providing care, up to a sum equal to four weeks of wages or salary for the employee."
SECTION 10. Section 398-2, Hawaii Revised Statutes, is repealed.
[§398-2] Inapplicability. The rights provided under this chapter shall
not apply to employees of an employer with fewer than one hundred employees."]
SECTION 11. The department shall establish rules pursuant to chapter 91, Hawaii Revised Statutes, to implement the purposes of this Act.
SECTION 12. There is appropriated out of the general revenues of the State of Hawaii the sum of $300,000 or so much thereof as may be necessary for fiscal year 2021-2022 and the same sum or so much thereof as may be necessary for fiscal year 2022-2023 for the purpose of hiring and employing an administrator, administrative assistant, and an accountant to perform functions relating to the administration of the family leave insurance program, including the oversight of payroll deductions, administrative processes, and payment to eligible employees.
The sums appropriated shall be expended by the department of labor and industrial relations for the purposes of this Act.
SECTION 13. This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun before its effective date.
SECTION 14. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.
SECTION 15. This Act shall take effect on July 1, 2021.
Family Leave Insurance Program; Family Leave Insurance Benefits; Appropriation
Requires the department of labor and industrial relations to establish and administer a family leave insurance program. Provides family leave insurance benefits and extends period of family leave to 16 weeks for businesses that employs one or more employees who meet the hourly qualifications. Appropriates funds.
The summary description of legislation appearing on this page is for informational purposes only and is not legislation or evidence of legislative intent.