Report Title:

Sick Leave

 

Description:

Requires employers to provide paid sick leave to employees.

 


HOUSE OF REPRESENTATIVES

H.B. NO.

1687

TWENTY-FIFTH LEGISLATURE, 2009

 

STATE OF HAWAII

 

 

 

 

 

 

A BILL FOR AN ACT


 

 

relating to sick leave.

 

 

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

 


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

"Chapter

sick leave

     §   -1  Short title.  This chapter shall be known as the "Paid Sick Leave Law".

     §   -2  Definitions.  For purposes of this chapter, the following definitions shall apply unless the context otherwise requires:

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

     "Employee" has the same meaning ascribed to the term in chapter 392.

     "Employer" has the same meaning ascribed to the term in chapter 392.

     "Employment" has the same meaning ascribed to the term in chapter 392.

     "Sick leave" has the same meaning ascribed to the term in chapter 398; provided that "sick leave" also extends beyond the employee's own illness, injury, medical condition, need for medical diagnosis or treatment, or medical reason, to also encompass time taken off work by an employee for the purpose of providing care or assistance to other persons, as specified further in section    ‑4(a), with an illness, injury, medical condition, need for medical diagnosis or treatment, or other medical reason.

     "Small business" means an employer for which fewer than ten persons work for compensation during a given week.  In determining the number of persons performing work for an employer during a given week, all persons performing work for compensation on a full-time, part-time, or temporary basis shall be counted, including persons made available to work through the services of a temporary services or staffing agency or similar entity.

     §   -3  Accrual of paid sick leave.  (a)  For employees working for an employer on or before the effective date of this chapter, paid sick leave shall begin to accrue as of the effective date of this chapter.  For employees hired by an employer after the effective date of this chapter, paid sick leave shall begin to accrue ninety days after the commencement of employment with the employer.

     (b)  For every thirty hours worked after paid sick leave begins to accrue for an employee, the employee shall accrue one hour of paid sick leave.  Paid sick leave shall only be required to accrue in hour-unit increments; provided that this section shall not prohibit an employer from providing for accruals in shorter increments.  Paid sick leave shall not accrue in any fraction of an hour-unit.

     (c)  Accrued paid sick leave that remains unused at the end of a year shall be carried over to the next year; provided that:

     (1)  Employees of small businesses shall be able to accrue not more than forty hours of paid sick leave; and

     (2)  Employees of other employers shall be able to accrue not more than seventy-two hours of paid sick leave;

unless greater amounts are authorized by the employer or pursuant to collective bargaining agreement.

     (d)  If an employer has a paid leave policy, such as a paid time off policy, that makes available to employees an amount of paid leave that may be used for the same purposes as paid sick leave under this chapter and that is sufficient to meet the requirements for accrued paid sick leave as stated in subsections (a) to (c), the employer shall not be required to provide additional paid sick leave.

     (e)  An employer shall not be required to provide financial or other reimbursement to an employee upon the employee's termination, resignation, retirement, or other separation from employment, for accrued paid sick leave that the employee has not used.

     §   -4  Use of paid sick leave.  (a)  An employee may use paid sick leave not only when the employee is ill or injured or for the purpose of the employee's receiving medical care, treatment, or diagnosis, but also to aid or care for the following persons when they are ill or injured or receiving medical care, treatment, or diagnosis:

     (1)  Child;

     (2)  Parent;

     (3)  Legal guardian or ward;

     (4)  Sibling;

     (5)  Grandparent;

     (6)  Grandchild;

     (7)  Spouse;

     (8)  Registered domestic partner under any state or local law; or

     (9)  Other designated person.

     The employee may use all or any percentage of the employee's paid sick leave to aid or care for those persons.

     If the employee has no spouse or registered domestic partner, the employee may designate one person as to whom the employee may use paid sick leave to aid or care for the person.  The opportunity to make such a designation shall be extended to the employee no later than the date on which the employee has worked thirty hours after paid sick leave begins to accrue pursuant to section    -3(a).  There shall be a window of ten work days for the employee to make this designation.  Thereafter, the opportunity to make the designation, including the opportunity to change such a designation previously made, shall be extended to the employee on an annual basis, with a window of ten work days for the employee to make the designation.

     (b)  An employer may not require, as a condition of an employee's taking paid sick leave, that the employee search for or find a replacement worker to cover the hours during which the employee is on paid sick leave.

     (c)  An employer may require employees to give reasonable notification of an absence from work for which paid sick leave is or will be used.

     (d)  An employer may only take reasonable measures to verify or document that an employee's use of paid sick leave is lawful.

     (e)  The employee may also use the employee's paid sick leave for the purposes of section 392-24; provided that the requirements for receiving temporary disability benefits under chapter 392 are otherwise met.

     (f)  The employee may also use the employee's paid sick leave for purposes of section 398-4; provided that the requirements for taking family leave under chapter 398 are otherwise met.

     §   -5  Notice and posting.  (a)  The department, upon the effective date of this chapter, shall publish and make available to employers in all languages spoken by limited English proficient persons as to be determined under section 371-33(c) a notice suitable for posting by employers in the workplace informing employees of their rights under this chapter.  The department shall update this notice on December 1 of any year in which there is a change in the languages spoken by limited English proficient persons as to be determined under section 371-33(c).

     (b)  Every employer shall post in a conspicuous place at any workplace or job site where any employee works the notice required by subsection (a).  Every employer shall post this notice in all languages spoken by limited English proficient persons as to be determined under section 371-33(c).

     §   -6  Employer records.  Employers shall retain records documenting hours worked by employees and paid sick leave taken by employees, for a period of four years, and shall allow the department access to those records, with appropriate notice and at a mutually agreeable time, to monitor compliance with the requirements of this chapter.  When an issue arises as to an employee's entitlement to paid sick leave under this chapter, if the employer does not maintain or retain adequate records documenting hours worked by the employee and paid sick leave taken by the employee, or does not allow the department reasonable access to those records, it shall be presumed that the employer has violated this chapter, absent clear and convincing evidence otherwise.

     §   -7  Exercise of rights protected; retaliation 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)  It shall be unlawful for an employer or any other person to discharge, threaten to discharge, demote, suspend, or in any manner discriminate or take adverse action against any person in retaliation for exercising rights protected under this chapter.  Those rights include but are not limited to:

     (1)  The right to use paid sick leave pursuant to this chapter;

     (2)  The right to file a complaint or inform any person about any employer's alleged violation of this chapter;

     (3)  The right to cooperate with the department in its investigations of alleged violations of this chapter; and

     (4)  The right to inform any person of the person's potential rights under this chapter.

     (c)  It shall be unlawful for an employer absence control policy to count paid sick 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 chapter shall apply to any person who mistakenly but in good faith alleges violations of this chapter.

     (e)  There shall be a rebuttable presumption that an employer or any other person discharged, threatened with discharge, demoted, suspended, or in some manner discriminated or took adverse action against any person in retaliation for exercising rights protected under this chapter when the employer or any other person takes adverse action against a person within ninety days of the person's performing any of the following:

     (1)  Filing a complaint with the department or a court alleging a violation of this chapter;

     (2)  Informing any person about an employer's alleged violation of this chapter;

     (3)  Cooperating with the department or other persons in the investigation or prosecution of any alleged violation of this chapter; or

     (4)  Opposing any policy, practice, or act that is unlawful under this chapter.

     §   -8  Implementation and enforcement.  (a)  The department shall be authorized to implement and enforce this chapter and may adopt appropriate rules under chapter 91 for those purposes.  Rules adopted by the department shall have the force and effect of law and may be relied upon by employers, employees, and other persons to determine their rights and responsibilities under this chapter.  Rules may establish procedures for ensuring fair, efficient, and cost-effective implementation of this chapter, including procedures to inform employees of their rights under this chapter, to monitor employer compliance with this chapter, and for administrative hearings to determine whether an employer or other person has violated the requirements of this chapter.

     (b)  The department is authorized to take appropriate steps to enforce this chapter.  The department may investigate any possible violations of this chapter by an employer or other person.  Where the department has reason to believe that a violation has occurred, it may order any appropriate temporary or interim relief to mitigate the violation pending completion of a full investigation or hearing.

     Where the department, after a hearing pursuant to chapter 91, determines that a violation has occurred, it may order any appropriate relief including but not limited to reinstatement, back pay, the payment of any sick leave unlawfully withheld, and the payment of an additional sum as an administrative penalty to each employee or person whose rights under this chapter were violated.  If any paid sick leave was unlawfully withheld, an additional penalty of $250, or three times the dollar amount of paid sick leave withheld from the employee, whichever amount is greater, shall be included in the administrative penalty paid to the employee.

     In addition, if a violation of this chapter resulted in other harm to the employee or any other person, such as discharge from employment, or otherwise violated the rights of employees or other persons, such as a failure to post the notice required by section    ‑5(b), or an act of retaliation prohibited by section    -7, this administrative penalty shall also include $50 to each employee or person whose rights under this chapter were violated for each day or portion thereof that the violation occurred or continued.

     Where prompt compliance is not forthcoming, the department may take any appropriate enforcement action to secure compliance, including initiating a civil action pursuant to section    -8(c) or, except where prohibited by state or federal law, requesting that other departments revoke or suspend any registration, certificates, permits, or licenses held or requested by the employer or person until such time as the violation is remedied.

     In order to compensate the State for the costs of investigating and remedying the violation, the department may also order the violating employer or person to pay to the State a sum of not more than $50 for each day or portion thereof and for each employee or person as to whom the violation occurred or continued.  These penalties shall be deposited into the general fund.

     An employee or other person may report to the department any suspected violation of this chapter.  The department shall encourage reporting pursuant to this subsection by keeping confidential, to the maximum extent permitted by applicable laws, the name and other identifying information of the employee or person reporting the violation; provided that with the authorization of the person, the department may disclose the person's name and identifying information as necessary to enforce this chapter or for other appropriate purposes.

     (c)  The department, the attorney general, any person aggrieved by a violation of this chapter, or any entity a member of whom is aggrieved by a violation of this chapter may bring a civil action in a court of competent jurisdiction against the employer or other person violating this chapter.  Upon prevailing, the complainant shall be entitled to such legal or equitable relief as may be appropriate to remedy the violation.  Relief may include but not be limited to reinstatement, back pay, the payment of any sick leave unlawfully withheld, or liquidated damages in the amount of $50 to each employee or person whose rights under this chapter were violated for each hour or portion thereof that the violation occurred or continued.  Additionally, where the employer has unlawfully withheld paid sick leave to an employee, the prevailing complainant shall be entitled the dollar amount of paid sick leave withheld from the employee multiplied by three, or $250, whichever amount is greater, and reinstatement in employment.  The prevailing complainant shall also be entitled to reasonable attorneys' fees and costs.

     (d)  In any administrative or civil action brought under this chapter, the department or court, as the case may be, shall award interest on all amounts due and unpaid at the rate of interest specified in section 478-3.

     (e)  The remedies, penalties, and procedures provided under this chapter are cumulative.

     §   -9  Waiver through collective bargaining.  Nothing in this chapter shall apply to employees covered by a bona fide collective bargaining agreement to the extent that the requirements of this chapter are expressly waived in the collective bargaining agreement in clear and unambiguous terms.

     §   -10  Other legal requirements.  This chapter provides minimum requirements pertaining to paid sick leave and shall not be construed to preempt, limit, or otherwise affect the applicability of any other law, regulation, requirement, policy, or standard that provides for greater accrual or use by employees of sick leave, whether paid or unpaid, or that extends other protections to employees.

     §   -11  More generous employer leave policies.  This chapter provides minimum requirements pertaining to paid sick leave and shall not be construed to prevent employers from adopting or retaining leave policies that are more generous than policies that comply with this chapter.  Employers are encouraged to provide more generous leave policies than required by this chapter."

     SECTION 2.  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 3.  This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun, before its effective date.

     SECTION 4.  This Act shall take effect on January 1, 2010.

 

INTRODUCED BY:

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