HOUSE OF REPRESENTATIVES

H.B. NO.

1409

THIRTY-SECOND LEGISLATURE, 2023

 

STATE OF HAWAII

 

 

 

 

 

 

A BILL FOR AN ACT

 

 

RELATING TO EMPLOYEE BENEFITS.

 

 

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

 


SECTION 1. The legislature finds that in 2020, one in ten babies (or ten per cent of live births) was born preterm in the State, meaning that those births occurred before thirty-seven completed weeks of gestation. The legislature also finds that approximately 1.6 per cent of live births in the State are "very preterm", denoting that the babies were born before thirty-two completed weeks of gestation.

The legislature further finds that these preterm and very preterm babies spend weeks or months in neonatal intensive care units (NICU), requiring their parents to also spend weeks or months at the NICU in support of their babies' care. Research published in 2015 in the medical journal Pediatrics shows that parental "kangaroo care", meaning continual skin-to-skin contact, reduces infant mortality by thirty-six per cent, lowers risk of sepsis or major infection by forty-seven per cent, and reduces the length of stay in the NICU by up to one week. Additional benefits include better neurological development of the baby, reduced depression for the mother, and a fifty per cent increase in the likelihood of exclusive breastfeeding after discharge, which itself has well-known and unique benefits for child health and development. For babies in the NICU, it is vitally important that mothers continually express breast milk for them, which requires up to an hour of pumping every few hours throughout the day and night.

The legislature also finds that Oahu has the only high-risk NICU in the State, resulting in parents from other islands being forced to relocate at significant disruption and expense for an extended period of time. Even for parents on Oahu, it is nearly impossible to maintain full time employment when they are constantly caring for their babies in the NICU. Added to this time, expense, and stress, parents caring for their NICU child may not necessarily qualify for financial assistance through temporary disability insurance or protection from job loss under the federal Family and Medical Leave Act. When parents do qualify, they often use a large proportion of their family leave while their baby is in the NICU, and often feel financial pressure to return to work when their babies are still very young, which deprives both the babies and parents of early bonding that is an important factor in child development and long-term outcomes. Some parents return to work while their babies are still in the NICU to preserve and use their family leave upon their babies' discharge. Furthermore, many parents are advised not to enroll their babies in childcare upon discharge from the NICU due to concerns of infection, which further interferes with their planned return to work.

The legislature additionally finds that according to the State Health Planning and Development Agency's 2020 Health Care Utilization Report, the cost of an average NICU stay is between $7,700 to $8,500 per day in Hawaii. Thus, the cost of a twelve-week NICU stay could easily exceed $650,000. Reducing a NICU stay by one week could save an average of $57,000 per baby. Furthermore, the cost of temporary disability insurance for twelve weeks for two parents is less than $40,000.

Accordingly, the purpose of this Act is to:

(1) Expand the State's temporary disability insurance coverage to, and exempt from temporary disability benefit eligibility requirements that are employment-related, employees who are unable to perform their employment duties due to the employee's giving of birth to a child or provision of kangaroo care to, or expression of breast milk for, the employee's child who is required to stay in a neonatal intensive care unit; and

(2) Extend, under certain conditions, the temporary disability benefit payment period and family leave period for employees who are unable to perform their employment duties due to:

(A) Preterm birth of a child who is required to stay in a neonatal intensive care unit; or

(B) Birth of a child who is required to stay in a neonatal intensive care unit for more than eight weeks.

SECTION 2. Section 392-3, Hawaii Revised Statutes, is amended as follows:

1. By adding a new definition to be appropriately inserted and to read:

""Kangaroo care" means a technique of newborn care where the baby is kept chest-to-chest and skin-to-skin with a parent."

2. By amending the definition of "disability" to read:

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

(1) Sickness, pregnancy, termination of pregnancy, organ donation, or accident other than a work injury as [defined] specified in section 386‑3[.];

(2) The employee's giving birth to a child; or

(3) The employee's provision of kangaroo care to, or expression of breast milk for, the employee's child who is required to stay in a neonatal intensive care unit."

SECTION 3. Section 392-21, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows:

"(a) Any individual in current employment who suffers disability resulting from [accident,]:

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

(2) Giving birth to a child; or

(3) Providing kangaroo care to, or expressing breast milk for, the individual's child who is required to stay in a neonatal intensive care unit,

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

SECTION 4. 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[.]; provided that any employee who suffers from disability resulting from a pregnancy involving:

(1) Preterm birth of a child who is required to stay in a neonatal intensive care unit; or

(2) Birth of a child who is required to stay in a neonatal intensive care unit for more than eight weeks,

shall be entitled to benefit payments for an additional period not to exceed six weeks while the child is in a neonatal intensive care unit or after the child is discharged from the unit; provided further that during the additional period of benefit payment, the employee provides kangaroo care to, or expresses breast milk for, the child, which requires the employee to continually be in close physical proximity to the child.

(c) As used in this section, "preterm birth" means a live birth of a child that occurs before thirty-seven completed weeks of gestation."

SECTION 5. Section 392-25, Hawaii Revised Statutes, is amended to read as follows:

"392-25 Eligibility for benefits[.]; exemption. An individual is eligible to receive temporary disability benefits if the individual has been in employment 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[.]; provided that an individual who is disabled due to giving birth to a child or providing kangaroo care to, or expressing breast milk for, the individual's child who is required to stay in a neonatal intensive care unit shall not be required to fulfill these eligibility requirements."

SECTION 6. Section 398-3, Hawaii Revised Statutes, is amended to read as follows:

"398-3 Family leave requirement. (a) An employee shall be entitled to a total of four 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[.];

provided that any employee who suffers from total inability to perform the duties of the employee's employment resulting from a preterm birth of a child who is required to stay in a neonatal intensive care unit, or birth of a child who is required to stay in a neonatal intensive care unit for more than eight weeks, shall be entitled to additional family leave not to exceed twelve weeks while the child is in a neonatal intensive care unit or after the child is discharged from the neonatal intensive care unit; provided further that during the additional period of family leave, the employee provides kangaroo care to, or expresses breast milk for, the child, which requires the employee to continually be in close physical proximity to the child.

(b) [During each calendar year, the leave] Leave pursuant to this section may be taken intermittently[.] during each calendar year.

(c) Leave pursuant to this section shall not be cumulative[.] from one calendar to another.

(d) If unpaid leave under this chapter conflicts with the unreduced compensation requirement for exempt employees under the federal Fair Labor Standards Act, an employer may require the employee to make up for the leave taken within the same pay period.

(e) Nothing in this chapter shall entitle an employee to more than a total of four weeks of leave in any twelve-month period[.]; provided that any employee who suffers from total inability to perform the duties of the employee's employment resulting from a preterm birth of a child who is required to stay in a neonatal intensive care unit or birth of a child who is required to stay in a neonatal intensive care unit for more than eight weeks shall be entitled to additional family leave not to exceed twelve weeks while the child is in a neonatal intensive care unit or after the child is discharged from the neonatal intensive care unit; provided further that during the additional period of family leave, the employee provides kangaroo care to, or expresses breast milk for, the child, which requires the employee to continually be in close physical proximity to the child.

(f) For purposes of this section, "kangaroo care" shall have the same meaning as in section 392-3."

SECTION 7. Section 398-4, Hawaii Revised Statutes, is amended by amending subsections (a) and (b) to read as follows:

"(a) [Pursuant to section 398-3, an employee shall be entitled to four weeks of family leave. The family leave shall] Nothing in this chapter shall be construed to require an employer to provide its employees with paid family leave. If an employer provides its employees with paid family leave, family leave taken by an employee pursuant to section 398-3 may 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 family leave period to which an employee is entitled pursuant to section 398-3, [the additional period of leave added leave to attain the four-week total] leave taken by the employee beyond the period of paid family leave provided by the employer may be unpaid.

(b) Except as otherwise provided in subsection (c), an employee may elect to substitute any part of family leave to which the employee is entitled pursuant to section 398-3, with any of the employee's accrued paid leaves, including [but not limited to] vacation, personal[,] leave, or family leave [for any part of the four-week period in subsection (a)]."

SECTION 8. The department of health shall amend its administrative rules to ensure that neonatal care is included as a "related medical condition" wherever the phrase "pregnancy, childbirth, or related medical condition" is used.

SECTION 9. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 10. This Act shall take effect upon its approval.

 

INTRODUCED BY:

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Report Title:

Temporary Disability Insurance; Eligibility Criteria Exemption; Family Leave; Pregnancy; Childbirth; Preterm Birth; Neonatal Intensive Care Unit; Kangaroo Care; Breast Milk Expression

 

Description:

Expands the State's temporary disability insurance (TDI) coverage to, and exempt from TDI benefit eligibility requirements that are employment-related, employees who are unable to perform their employment duties due to the employee's childbirth or provision of kangaroo care to, or expression of breast milk for, the employee's child who is required to stay in a neonatal intensive care unit. Extend under certain conditions, the temporary disability benefit payment period and family leave period for employees who are unable to perform their employment duties due to a preterm birth of a child who is required to stay in a neonatal intensive care unit or birth of a child who is required to stay in a neonatal intensive care unit for more than eight weeks. Defines "kangaroo care" and "preterm birth". Requires the Department of Health to amend its rules to include neonatal care as related condition where the phrase "pregnancy, childbirth, or other related condition" is used.

 

 

 

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