HB1202 HD1

SECTION 1. The legislature finds that the spread of disease at the workplace can cripple a business. However, some employees cannot afford to take unpaid leave while sick and thus come to work anyway.

The purpose of this Act is to encourage employees to take care of their health and not spread diseases at work by requiring employers to provide a minimum amount of paid sick leave to employees and supplemental paid sick leave to employees under certain public health emergency conditions.

SECTION 2. The Hawaii Revised Statutes is amended by adding a new chapter to be appropriately designated and to read as follows:

"Chapter

PAID SICK LEAVE

§ -1 Definitions. As used in this chapter, unless the context clearly requires otherwise:

"Director" means the director of labor and industrial relations.

"Employee" has the same meaning as defined in the federal Fair Labor Standards Act, title 29 United States Code section 203(e), excluding individuals employed by a public agency as defined in that section, employees and public employees as defined in section 89-2, sole proprietors, and independent contractors. "Employee" includes recipients of public benefits who are engaged in work activity as a condition of receiving public assistance.

"Employer" has the same meaning as defined in the federal Fair Labor Standards Act, title 29 United States Code section 203(d), excluding a public agency as defined in that section, and employer and public employer as defined in section 89-2.

"Paid sick leave" means time away from work provided by an employer to an employee that is compensated at the same hourly rate and with the same benefits, including health care benefits, as the employee normally earns during hours worked. "Preventive medical care" means routine health care that includes screenings, check-ups, and patient counseling to prevent illnesses, disease, or other health problems.

§ -2 Accrual of paid sick leave. (a) All employees who work in the State for more than eighty hours in a year shall have the right to paid sick leave as provided in this chapter.

(b) All employees shall accrue a minimum of one hour of paid sick leave for every thirty hours worked. Employees shall not accrue more than forty hours of paid sick leave in a calendar year unless the employer provides a higher limit.

(c) An employee who is exempt from overtime requirements under the federal Fair Labor Standards Act, title 29 United States Code section 213(a)(1), shall be assumed to work forty hours in each work week for purposes of paid sick leave accrual unless the employee's normal work week is less than forty hours, in which case paid sick leave shall accrue based upon the actual hours in the normal work week.

(d) Paid sick leave as provided in this chapter shall begin to accrue at the commencement of employment or the effective date of this chapter, whichever is later.

(e) Employees shall be entitled to use accrued paid sick leave beginning on the ninetieth calendar day following commencement of employment. After the ninetieth calendar day of employment, employees may use paid sick leave as it is accrued.

(f) Paid sick leave shall be carried over to the following calendar year; provided that an employee's use of paid sick leave pursuant to this chapter in each calendar year shall not exceed forty hours of paid sick leave in a calendar year unless the employer provides a higher limit.

(g) An employer shall not be required to provide additional paid sick leave if the employer has a paid leave policy that makes available an amount of paid leave sufficient to meet the accrual requirements of this chapter and that may be used for the same purposes and under the same conditions as paid sick leave under this chapter.

(h) Nothing in this section shall be construed as requiring financial or other reimbursement to an employee from an employer upon the employee's termination, resignation, retirement, or other separation from employment for unused accrued paid sick leave.

(i) If an employee is transferred to a separate division, entity, or location but remains employed by the same employer, the employee shall be entitled to all paid sick leave accrued at the prior division, entity, or location and shall be entitled to use all paid sick leave as provided in this chapter. If an employee is separated from employment and subsequently rehired within six months of separation by the same employer, the employee's previously accrued and unused paid sick leave shall be reinstated. In addition, the employee shall be entitled to use accrued paid sick leave and to accrue additional paid sick leave as of the date of re-commencement of employment.

(j) An employer may advance paid sick leave to an employee before its accrual by the employee.

§ -3 Use of paid sick leave. (a) An employee may use paid sick leave during absences from work due to:

(1) An employee's mental or physical illness, injury, or health condition;

(2) An employee's need for medical diagnosis, care, or treatment of a mental or physical illness, injury, or health condition;

(3) An employee's need for preventive medical care;

(4) An employee's need to seek medical attention, legal services, or victim services for a mental or physical illness, injury, or health condition caused by domestic abuse, sexual assault, or harassment to the employee, or related to preparation for or participation in a civil or criminal proceeding; and

(5) Closure of the employee's place of business by order of a public official due to a public health emergency.

(b) Paid sick leave shall be provided upon the oral request of an employee. When possible, the request shall include the expected duration of the absence.

(c) When the use of paid sick leave is foreseeable, the employee shall make a good faith effort to provide notice of the need for the leave to the employer in advance of the use of the paid sick leave and shall make a reasonable effort to schedule the use of paid sick leave in a manner that does not unduly disrupt the operations of the employer.

(d) Accrued paid sick leave may be used in smaller than hourly increments or the smallest increment that the employer's payroll system uses to account for absences or use of other time.

(e) Paid sick leave shall not be used in conjunction with benefits afforded by temporary disability insurance pursuant to chapter 392 or workers' compensation pursuant to chapter 386.

§ -4 Supplemental paid sick leave; public health emergencies. (a) Notwithstanding section -2, on the date a public health emergency is declared, each employer shall supplement each employee's accrued paid sick leave under this section as necessary to ensure that an employee can take forty hours of paid sick leave in a calendar year unless the employer provides a higher limit.

(b) An employer may count an employee's unused accrued paid sick leave under section -2 toward the supplemental paid sick leave required by this section.

(c) An employee may use paid sick leave under this section until four weeks after the official termination or suspension of the public health emergency for any absence related to the public health emergency, including:

(1) The employee's need to self-isolate because the employee has been diagnosed with a communicable illness that is the cause of the public health emergency;

(2) The employee is experiencing symptoms of a communicable illness that is the cause of the public health emergency; or

(3) The employee's need to seek or obtain a medical diagnosis, medical care, medical treatment, or preventive care for symptoms of a communicable illness that is the cause of the public health emergency.

§ -5 Notice. (a) An employer shall give its employees notice of the following:

(1) That employees are entitled to paid sick leave;

(2) The amount of paid sick leave granted pursuant to this chapter;

(3) The terms of paid sick leave use as guaranteed under this chapter; and

(4) That each employee has the right to file a complaint or bring a civil action if paid sick leave, as required by this chapter, is denied by the employer.

(b) An employer shall comply with this section by providing the information required in subsection (a) by individualized notice. The notice shall be in English and in any language that is the first language spoken by at least five per cent of the employer's workforce.

(c) An employer who wilfully violates the notice requirements of this section shall be subject to a civil fine in an amount not to exceed $100 for each separate offense. Each failure to issue notice pursuant to this section shall constitute a separate offense.

§ -6 Employer records. An employer shall retain records documenting hours worked by employees and paid sick leave taken by employees for a period of five years and shall allow the director access to the records, with appropriate notice and at a mutually agreeable time, to monitor compliance with the requirements of this chapter. If an issue arises as to an employee's entitlement to paid sick leave under this chapter, it shall be presumed that the employer has violated this chapter, absent clear and convincing evidence otherwise, 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 director reasonable access to the records.

§ -7 Enforcement. (a) An employee or other person may report to the director any suspected violation of this chapter. The director 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 other person reporting the suspected violation; provided that with the authorization of the employee or other person, the director may disclose the employee's or other person's name and identifying information as necessary to enforce this chapter or for other appropriate purposes.

(b) The director, the attorney general, any person aggrieved by a violation of this chapter, or any labor organization, a member of which is aggrieved by a violation of this chapter, may bring a civil action in a court of competent jurisdiction against an employer who violates this chapter. The action may be brought without first filing an administrative complaint.

(1) The full amount of any paid sick leave to which the person is entitled;

(2) Actual damages suffered as the result of the employer's violation of this chapter; and

(3) Reasonable attorney's fees.

An aggrieved person shall also be entitled to equitable relief as may be appropriate to remedy the violation including reinstatement, back pay, and injunctive relief.

(d) The statute of limitations for a civil action brought pursuant to this chapter shall be for a period of three years from the date the alleged violation occurred.

(e) Actions brought pursuant to this chapter may be brought as a class action.

(f) For purposes of this section, "labor organization" has the same meaning as in section 378-1.

§ -8 Confidentiality and nondisclosure. An employer shall not require disclosure of details of an employee's medical condition as a condition of providing paid sick leave under this chapter. If an employer possesses health information or information pertaining to the details of a medical condition about an employee, the information shall be treated as confidential and shall not be disclosed except to the affected employee or with the permission of the affected employee.

§ -9 Employer adoption of more generous sick leave policies; no effect on contracts, agreements, and plans providing more generous sick leave. (a) Nothing in this chapter shall be construed to discourage or prohibit an employer from the adoption or retention of a paid sick leave policy more generous to the employee than is required by this chapter.

(b) Nothing in this chapter shall be construed as diminishing the obligation of an employer to comply with any contract, collective bargaining agreement, employment benefit plan, or other agreement providing more generous paid sick leave to an employee than is required by this chapter.

(c) Nothing in this chapter shall be construed as diminishing the rights of public employees regarding paid sick leave or the use of sick leave as provided by law.

(d) This chapter shall provide the minimum requirements of paid sick leave and shall not be construed to preempt, limit, or otherwise affect the applicability of any other law, rule, 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."

SECTION 3. 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 that can be given effect without the invalid provision or application, and to this end the provisions of this Act are severable.

SECTION 4. This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun before its effective date.

SECTION 5. This Act shall take effect on June 30, 3000; provided that in the case of employees covered by a collective bargaining agreement in effect on July 1, 2023, this Act shall take effect on the date of termination, renewal, or amendment of the collective bargaining agreement then in effect.

HOUSE OF REPRESENTATIVES	H.B. NO.	1202
THIRTY-SECOND LEGISLATURE, 2023		H.D. 1
STATE OF HAWAII