Bill Text: HI SB2369 | 2010 | Regular Session | Amended
Bill Title: Domestic Violence Omnibus
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Engrossed - Dead) 2010-03-03 - (H) Referred to LAB/HUS, CPC/JUD, FIN, referral sheet 36 [SB2369 Detail]
Download: Hawaii-2010-SB2369-Amended.html
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THE SENATE |
S.B. NO. |
2369 |
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TWENTY-FIFTH LEGISLATURE, 2010 |
S.D. 1 |
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STATE OF HAWAII |
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A BILL FOR AN ACT
RELATING TO DOMESTIC VIOLENCE.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:
PART I UNEMPLOYMENT INSURANCE
SECTION 1. Chapter 383, Hawaii Revised Statutes, is amended by adding a new section to be appropriately designated and to read as follows:
"§383‑ Unemployment compensation personnel; domestic violence training. Unemployment compensation personnel shall be trained in:
(1) The nature and dynamics of domestic or sexual violence and how to identify potential cases;
(2) Methods of determining whether domestic or sexual violence has occurred; and
(3) Keeping information about possible or actual experiences of domestic or sexual violence confidential,
to ensure that requests for unemployment compensation based on separations stemming from domestic or sexual violence are reliably screened, identified, and adjudicated, and that the individual's claim and submitted documentation remain confidential."
SECTION 2. Section 383-1, Hawaii Revised Statutes, is amended by adding five new definitions to be appropriately inserted and to read as follows:
""Domestic abuse" means conduct defined in section 586-1.
"Domestic or sexual violence" means domestic abuse, sexual assault, or stalking.
"Sexual assault" means any conduct proscribed by chapter 707, part V.
"Stalking" means engaging in a course of conduct specifically directed at a targeted person that would cause a reasonable person to suffer substantial emotional distress or to fear bodily injury, sexual assault, or death to the person or to the person's spouse, parent, child, or any other person who regularly resides in the person's household, and where the conduct causes the targeted person or a member of the targeted person's household to have distress or fear.
"Victim services organization" includes:
(1) Nonprofit, nongovernmental organizations that provide assistance to victims of domestic or sexual violence or that advocate for such victims, including rape crisis centers;
(2) Organizations operating a shelter or providing professional counseling services; and
(3) Organizations providing assistance through the legal process."
SECTION 3. Section 383-7.6, Hawaii Revised Statutes, is amended to read as follows:
"[[]§383-7.6[]]
Separation for compelling family reason. (a) An individual shall not be
disqualified from regular unemployment benefits for separating from employment
if that separation is for a compelling family reason.
For purposes of this section, the term "compelling family reason" means any of the following:
(1) Domestic or sexual violence that is verified by reasonable and confidential documentation that causes the individual to reasonably believe that the individual's continued employment may jeopardize the safety of the individual or any member of the individual's immediate family (as defined by the United States Secretary of Labor), including any of the following circumstances:
(A) The individual has a reasonable fear of the occurrence of future domestic or sexual violence at, en route to, or en route from the individual's place of employment, including being a victim of stalking;
(B) The anxiety of the individual to relocate to avoid future domestic or sexual violence against the individual or the individual's minor child prevents the individual from reporting to work;
(C) The need of the individual or the individual's minor child to obtain treatment to recover from the physical or psychological effects of domestic or sexual violence prevents the individual from reporting to work;
(D) The employer's refusal to grant the individual's request for leave to address domestic or sexual violence and its effects on the individual or the individual's minor child, including leave authorized by Section 102 of the Federal Family and Medical Leave Act of 1993, Public Law 103-3, as amended, or other federal, state, or county law; or
(E) Any other circumstance in which domestic or sexual violence causes the individual to reasonably believe that separation from employment is necessary for the future safety of the individual, the individual's minor child, or other individuals who may be present in the employer's workplace;
(2) Illness or disability of a member of the individual's immediate family (as defined by the United States Secretary of Labor); or
(3) The need for the individual to accompany the individual's spouse, because of a change in the location of the spouse's employment, to a place from which it is impractical for the individual to commute to work.
(b) The department may request as reasonable and confidential documentation under subsection (a)(1) the following evidence:
(1) A notarized written statement of the individual attesting to the status of the individual or the individual's minor child as a victim of domestic or sexual violence and explaining how continued employment creates an unreasonable risk of further violence;
(2) A signed written statement from:
(A) An employee, agent, or volunteer of a victim services organization;
(B) The individual's attorney or advocate;
(C) A minor child's attorney or advocate; or
(D) A medical or other professional from whom the individual or the individual's minor child has sought assistance related to the domestic or sexual violence,
attesting to the domestic or sexual violence and explaining how the continued employment creates an unreasonable risk of further violence; or
(3) A police or court record suggesting or demonstrating that the continued employment may cause an unreasonable risk of further violence.
(c) All information provided to the department pursuant to this section, including any statement of the individual or any other documentation, record, or corroborating evidence discussing or relating to domestic or sexual violence, and the fact that the individual has applied for, inquired about, or obtained unemployment compensation by reason of this section shall be retained in the strictest confidence by the individual's former or current employer, and shall not be disclosed except to the extent that disclosure is requested or consented to by the employee, ordered by a court or administrative agency, or otherwise required by applicable federal or state law.
[(d) As used in this section, the terms
"domestic or sexual violence", "stalking", and "victim
services organization" shall have the same meaning as in section 378-71.]
(d) The department shall ensure that all applicants for unemployment compensation and individuals inquiring about such compensation are adequately notified of the provisions of this section.
(e) Nothing in this section shall be construed to supersede any provision of any federal, state, or local law, collective bargaining agreement, or employment benefits program or plan that provides greater unemployment insurance benefits for victims of domestic or sexual violence than those established herein."
PART II EMPLOYMENT PRACTICES
SECTION 4. Chapter 378, Hawaii Revised Statutes, is amended by adding a new section to part I to be appropriately designated and to read as follows:
"§378‑ Discrimination on the basis of domestic or sexual abuse; civil liability. (a) Any employer that violates section 378-2(9) shall be liable to the affected individual for:
(1) Damages equal to the amount of wages, salary, employment benefits, or other compensation denied or lost to the individual by reason of the violation, and the interest on that amount calculated at the prevailing rate;
(2) Compensatory damages, including damages for future pecuniary losses, and emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment or life, and other nonpecuniary losses;
(3) Punitive damages, up to three times the amount of actual damages sustained, as the court determines to be appropriate; and
(4) Equitable relief as may be appropriate, including employment, reinstatement, and promotion.
(b) An action may be brought under this section not later than two years after the date of the last event constituting the alleged violation for which the action is brought."
SECTION 5. Chapter 378, Hawaii Revised Statutes, is amended by adding a new section to part VI to be appropriately designated and to read as follows:
"§378‑ Employer violations of victims leave; civil liability. (a) Any employer that violates any provision of section 378-72 shall be liable to any affected individual:
(1) For damages equal to:
(A) The amount of:
(i) Wages, salary, employment benefits, or other compensation denied or lost to such individual by reason of the violation; or
(ii) In a case in which wages, salary, employment benefits, or other compensation has not been denied or lost to the individual, any actual monetary losses sustained by the individual as a direct result of the violation;
(B) The interest on the amount described in subparagraph (A) calculated at the prevailing rate; and
(C) An additional amount as liquidated damages equal to the sum of the amount described in subparagraph (A) and the interest described in subparagraph (B), except that if an employer that has violated section 378-72(m) proves to the satisfaction of the court that the act or omission that violated section 378-72(m) was in good faith and that the employer had reasonable grounds for believing that the act or omission was not a violation of subsection 378-72(m), such court may, in the discretion of the court, reduce the amount of the liability to the amount and interest determined under subparagraphs (A) and (B); and
(2) For equitable relief as may be appropriate, including employment, reinstatement, and promotion.
(b) An action may be brought under this section not later than two years after the date of the last event constituting the alleged violation for which the action is brought. In the case of an action brought for a wilful violation of section 378‑72(m), such action may be brought within two years after the date of the last event constituting the alleged violation for which the action is brought."
SECTION 6. Section 378-2, Hawaii Revised Statutes, is amended to read as follows:
"§378-2 Discriminatory practices made unlawful; offenses defined. It shall be an unlawful discriminatory practice:
(1) Because of race, sex, sexual orientation, age, religion, color, ancestry, disability, marital status, or arrest and court record:
(A) For any employer to refuse to hire or employ or to bar or discharge from employment, or otherwise to discriminate against any individual in compensation or in the terms, conditions, or privileges of employment;
(B) For any employment agency to fail or refuse to refer for employment, or to classify or otherwise to discriminate against, any individual;
(C) For any employer or employment agency to print, circulate, or cause to be printed or circulated any statement, advertisement, or publication or to use any form of application for employment or to make any inquiry in connection with prospective employment, which expresses, directly or indirectly, any limitation, specification, or discrimination;
(D) For any labor organization to exclude or expel from its membership any individual or to discriminate in any way against any of its members, employer, or employees; or
(E) For any employer or labor organization to refuse to enter into an apprenticeship agreement as defined in section 372-2; provided that no apprentice shall be younger than sixteen years of age;
(2) For any employer, labor organization, or employment agency to discharge, expel, or otherwise discriminate against any individual because the individual has opposed any practice forbidden by this part or has filed a complaint, testified, or assisted in any proceeding respecting the discriminatory practices prohibited under this part;
(3) For any person whether an employer, employee, or not, to aid, abet, incite, compel, or coerce the doing of any of the discriminatory practices forbidden by this part, or to attempt to do so;
(4) For any employer to violate the provisions of section 121-43 relating to nonforfeiture for absence by members of the national guard;
(5) For any employer to refuse to hire or employ or to bar or discharge from employment, any individual because of assignment of income for the purpose of satisfying the individual's child support obligations as provided for under section 571-52;
(6) For any employer, labor organization, or employment agency to exclude or otherwise deny equal jobs or benefits to a qualified individual because of the known disability of an individual with whom the qualified individual is known to have a relationship or association;
(7) For any employer or labor organization to refuse
to hire or employ, or to bar or discharge from employment, or withhold pay,
demote, or penalize a lactating employee because an employee breastfeeds or
expresses milk at the workplace. For purposes of this paragraph, the term
"breastfeeds" means the feeding of a child directly from the breast; [or]
(8) For any employer to refuse to hire or employ or
to bar or discharge from employment, or otherwise to discriminate against any
individual in compensation or in the terms, conditions, or privileges of
employment of any individual because of the individual's credit history or
credit report, unless the information in the individual's credit history or
credit report directly relates to a bona fide occupational qualification under
section 378-3(2)[.]; or
(9) For an employer to fail to hire, refuse to hire, discharge, or harass any individual, or otherwise discriminate against any individual with respect to the compensation, terms, conditions, or privileges of employment of the individual, including retaliation in any form or manner, because:
(A) The individual is, or the employer perceives the individual to be, a victim of domestic or sexual violence;
(B) The individual attended, participated in, prepared for, or requested leave to attend, participate in, or prepare for, a criminal or civil court proceeding relating to an incident of domestic or sexual violence of which the individual, or the individual's minor child, was a victim;
(C) The individual, in response to actual or threatened domestic or sexual violence, requested that the employer implement a reasonable safety procedure or a job-related modification to enhance the security of that individual or safeguard the workplace involved; or
(D) The workplace is disrupted or threatened by the action of a person who the individual states has committed or threatened to commit domestic or sexual violence against the individual or the individual's minor child.
For the purposes of this section, "domestic or sexual violence" and "stalking" have the same meaning as defined in section 383-1."
SECTION 7. Section 378-72, Hawaii Revised Statutes, is amended to read as follows:
"[[]§378-72[]] Leave of
absence for domestic or sexual violence. (a) [An employer employing
fifty or more employees shall allow an employee to take up to thirty days of
unpaid victim leave from work per calendar year, or an employer employing not
more than forty-nine employees shall allow an employee to take up to five days
of unpaid leave from work per calendar year,] An employer shall allow an
employee to take thirty days of leave, either intermittently or on a reduced
leave schedule, within a twelve-month period if the employee or the
employee's minor child is a victim of domestic or sexual violence; provided the
leave is to [either]:
(1) Seek medical attention for the employee or employee's minor child to recover from physical or psychological injury or disability caused by domestic or sexual violence;
(2) Obtain services from a victim services organization;
(3) Obtain psychological or other counseling;
(4) Temporarily or permanently relocate; or
(5) Take legal action, including preparing for or participating in any civil or criminal legal proceeding related to or resulting from the domestic or sexual violence, or other actions to enhance the physical, psychological, or economic health or safety of the employee or the employee's minor child or to enhance the safety of those who associate with or work with the employee.
(b) An employee's absence from work that is
due to or resulting from domestic [abuse] or sexual violence against the
employee or the employee's minor child as provided in this section shall be
considered by an employer to be a justification for leave for a reasonable period
of time, not to exceed the total number of days [allocable for each category
of employer] specified under subsection (a).
"Reasonable period of time" as used in this section means:
(1) Where due to physical or psychological injury to or disability to the employee or employee's minor child, the period of time determined to be necessary by the attending health care provider, considering the condition of the employee or employee's minor child, and the job requirements; and
(2) Where due to an employee's need to take legal or other actions, including preparing for or participating in any civil or criminal legal proceeding, obtaining services from a victim services organization, or permanently or temporarily relocating, the period of time necessary to complete the activity as determined by the employee's or employee's minor child's attorney or advocate, court, or personnel of the relevant victim services organization.
(c) Where an employee is a victim of domestic or sexual violence and seeks leave for medical attention to recover from physical or psychological injury or disability caused by domestic or sexual violence, the employer may request that the employee provide:
(1) A certificate from a health care provider estimating the number of leave days necessary and the estimated commencement and termination dates of leave required by the employee; and
(2) Prior to the employee's return, a medical certificate from the employee's attending health care provider attesting to the employee's condition and approving the employee's return to work.
(d) Where an employee has taken not more than five calendar days of leave for non-medical reasons, the employee shall provide certification to the employer in the form of a signed statement within a reasonable period after the employer's request, that the employee or the employee's minor child is a victim of domestic or sexual violence and the leave is for one of the purposes enumerated in subsection (a). If the leave exceeds five days per calendar year, then the certification shall be provided by one of the following methods:
(1) A signed written statement from an employee, agent, or volunteer of a victim services organization, from the employee's attorney or advocate, from a minor child's attorney or advocate, or a medical or other professional from whom the employee or the employee's minor child has sought assistance related to the domestic or sexual violence; or
(2) A police or court record related to the domestic or sexual violence.
(e) If certification is required, no leave shall be protected until a certification, as provided in this section, is provided to the employer.
(f) The employee shall provide the employer with reasonable notice of the employee's intention to take the leave, unless providing that notice is not practicable due to imminent danger to the employee or the employee's minor child.
(g) Nothing in this section shall be construed to prohibit an employer from requiring an employee on victim leave to report not less than once a week to the employer on the status of the employee and intention of the employee to return to work.
(h) Upon return from leave under this section, the employee shall return to the employee's original job or to a position of comparable status and pay, without loss of accumulated service credits and privileges, except that nothing in this subsection shall be construed to entitle any restored employee to the accrual of:
(1) Any seniority or employment benefits during any period of leave, unless the seniority or benefits would be provided to a similarly situated employee who was on leave due to a reason other than domestic or sexual violence; or
(2) Any right, benefit, or position of employment to which the employee would not have otherwise been entitled.
(i) During any period in which an employee takes leave under this section, the employer shall maintain coverage for the employee under any group health plan, as defined in Section 5000(b)(1) (with respect to certain group health plans) of the Internal Revenue Code, for the duration of such leave, at the level and under the conditions coverage would have been provided if the employee had continued in employment continuously for the duration of the leave.
(j) An employer may recover the premium that the employer paid for maintaining coverage for the employee as specified under subsection (i) during any period of leave taken pursuant to this section if:
(1) The employee fails to return from leave under this section after the period of leave to which the employee is entitled has expired; and
(2) The employee fails to return to work for a reason other than the continuation of, recurrence of, or onset of an episode of domestic or sexual violence that entitles the employee to leave pursuant to this section.
An employer may require an employee who claims that the employee is unable to return to work because of the continuation of, recurrence of, or onset of an episode of domestic or sexual violence to provide, within a reasonable period after making the claim, certification to the employer that the employee is unable to return to work because of such reason. This certification requirement may be satisfied by providing to the employer a sworn statement of the employee; documentation from an employee, agent, or volunteer of a victim services organization, an attorney, a member of the clergy, or a medical or other professional, from whom the employee or the employee's family or household member has sought assistance in addressing domestic or sexual violence; or a police or court record.
(k) If an employee who takes leave under this section is a salaried employee who is among the highest paid ten per cent of employees employed by the employer within seventy-five miles of the facility at which the employee is employed, the employer may deny restoration under subsection (h) if:
(1) The denial is necessary to prevent substantial and grievous economic injury to the operations of the employer; and
(2) The employer notifies the employee of the intent of the employer to deny restoration on such basis at the time the employer determines that the injury would occur.
[(i)] (l) All information
provided to the employer under this section, including statements of the
employee, or any other documentation, record, or corroborating evidence, and
the fact that the employee or employee's minor child has been a victim of
domestic or sexual violence or the employee has requested leave pursuant to
this section, shall be maintained in the strictest confidence by the employer,
and shall not be disclosed, except to the extent that disclosure is:
(1) Requested or consented to by the employee;
(2) Ordered by a court or administrative agency; or
(3) Otherwise required by applicable federal or state law.
(m) It shall be unlawful for any employer to discharge or harass any individual, or otherwise discriminate against any individual with respect to the individual's compensation, terms, conditions, or privileges of employment, including retaliation in any form or manner, because the individual has:
(1) Exercised any right provided under this section;
(2) Opposed any practice made unlawful by this section;
(3) Filed any charge, or has instituted or caused to be instituted any proceeding, under or related to this section;
(4) Given, or is about to give, any information in connection with any inquiry or proceeding relating to any right provided under this section; or
(5) Testified, or is about to testify, in any inquiry or proceeding relating to any right provided under this section.
[(j) Any employee denied leave by an
employer in wilful violation of this section may file a civil action against
the employer to enforce this section and recover costs, including reasonable
attorney's fees, incurred in the civil action.]"
SECTION 8. Section 378-73, Hawaii Revised Statutes, is amended to read as follows:
"[[]§378-73[]]
Relationship to other leaves. [If an employee is entitled to take paid
or unpaid leave pursuant to other federal, state, or county law, or pursuant to
an employment agreement, a collective bargaining agreement, or an employment
benefits program or plan, which may be used for the purposes listed under
section 378-72(a), the employee shall exhaust such other paid and unpaid leave
benefits before victim leave benefits under this chapter may be applied. The
combination of such other paid or unpaid leave benefits that may be applied and
victim leave benefits shall not exceed the maximum number of days specified
under section 378-72(a).] An employee who is entitled to take paid or
unpaid leave, including family, medical, sick, annual, personal, or similar
leave, pursuant to state or local law, a collective bargaining agreement, or an
employment benefits program or plan, may elect to substitute any period of such
leave for an equivalent period of leave provided under section 378-72."
PART III EMERGENCY LEAVE BENEFITS
SECTION 9. Chapter 378, Hawaii Revised Statutes, is amended by adding a new section to part VI to be appropriately designated and to read as follows:
"§378‑ Emergency leave benefits. (a) An employee who takes emergency leave pursuant to section 378-72 may be eligible for nonrecurrent short-term emergency benefits for the period of time the leave is taken.
(b) An individual seeking emergency benefits under this section shall submit an application to the department of human services. The department of human services shall consider the applications on an expedited basis, and shall determine eligibility and release payments no later than seven days after the applicant submits an application.
(c) In calculating the eligibility of an individual for benefits under this section, the department of human services shall count only the cash available or accessible to the individual.
(d) The department of human services shall fund this program, including the benefits provided under this section, from the spouse and child abuse special account, established under section 346-7.5."
SECTION 10. Section 346-7.5, Hawaii Revised Statutes, is amended by amending subsection (c) to read as follows:
"(c) The account shall consist of fees remitted pursuant to sections 338-14.5 and 572-5, income tax remittances allocated under section 235-102.5, fines collected pursuant to sections 580-10, 586-4(e), and 586-11, interest and investment earnings, grants, donations, and contributions from private or public sources. All realizations of the account shall be subject to the conditions specified in subsection (b)."
SECTION 11. Section 580-10, Hawaii Revised Statutes, is amended by amending subsection (e) to read as follows:
"(e)
Any fines collected pursuant to subsection (d) shall be deposited into the
spouse and child abuse special account established under section [601-3.6.]
346-7.5."
SECTION 12. Section 586-4, Hawaii Revised Statutes, is amended by amending subsection (f) to read as follows:
"(f) Any fines collected pursuant to
subsection [[](e)[]] shall be deposited into the spouse and child
abuse special account established under section [601-3.6.] 346-7.5."
SECTION 13. Section 586-11, Hawaii Revised Statutes, is amended by amending subsection (b) to read as follows:
"(b)
Any fines collected pursuant to subsection (a) shall be deposited into the
spouse and child abuse special account established under section [601-3.6.]
346-7.5."
SECTION 14. Section 601-3.6, Hawaii Revised Statutes, is amended by amending subsection (c) to read as follows:
"(c) The account shall consist of fees
remitted pursuant to sections 338-14.5 and 572-5, income tax remittances
allocated under section 235-102.5, [fines collected pursuant to sections
[586-4(e)], 580-10, and 586-11], interest and investment earnings, grants,
donations, and contributions from private or public sources. All realizations
of the account shall be subject to the conditions specified in subsection (b)."
PART IV PUBLIC ASSISTANCE
SECTION 15. Chapter 28, Hawaii Revised Statutes, is amended by adding a new section to be appropriately designated and to read as follows:
"§28‑ Domestic or sexual abuse victims who receive public assistance; assistance for redress. (a) The attorney general shall ensure that any public agency that violates section 346-A by taking an action prohibited under that section against any public assistance recipient with respect to the amount, terms, or conditions of public assistance, shall provide the recipient who received a less favorable amount, term, or condition of public assistance as a result of the violation:
(1) The amount of any public assistance denied or lost to the recipient by reason of the violation;
(2) The interest on the amount of any public assistance denied or lost by reason of the violation; and
(3) Equitable relief as may be appropriate.
(b) The attorney general shall adopt rules pursuant to chapter 91 necessary to effectuate the purposes of this section."
SECTION 16. Chapter 346, Hawaii Revised Statutes, is amended by adding two new sections to be appropriately designated and to read as follows:
"§346-A Public assistance; discrimination on the basis of domestic or sexual violence prohibited. It shall be unlawful for a public assistance recipient's benefits to be denied, reduced, terminated, or otherwise sanctioned, or for a public assistance recipient to be discriminated against with respect to the amount, terms, or conditions of the recipient's public assistance, including retaliation in any form or manner because:
(1) The recipient is, or is perceived to be, a victim of domestic or sexual violence;
(2) The recipient attended, participated in, prepared for, or requested leave to attend, participate in, or prepare for, a criminal or civil court proceeding relating to an incident of domestic or sexual violence of which the recipient, or the family or a member of the recipient's household, was a victim;
(3) The recipient, in response to actual or threatened domestic or sexual violence, requested that a reasonable safety procedure or modification to enhance the security of the recipient be implemented;
(4) The workplace of the recipient is disrupted or threatened by the action of a person who the recipient states has committed or threatened to commit domestic or sexual violence against the recipient, or against the recipient's family or a member of the recipient's household; or
(5) The recipient exercised any right provided by, or opposed any practice made unlawful under, section 378‑72.
§346-B Public assistance; domestic violence training; notification. (a) The department shall adopt rules in accordance with chapter 91 to ensure that:
(1) Applicants for assistance through a family assistance program administered under Section 402 (with respect to eligible states; state plan) of the Social Security Act and individuals inquiring about the assistance are adequately notified of:
(A) The availability of unemployment compensation for victims of domestic or sexual violence as provided in section 383-7.6;
(B) Provisions allowing for a leave of absence from employment for victims of domestic or sexual violence as provided in part VI of chapter 378;
(C) The availability of nonrecurrent short-term emergency benefits available to individuals for a period of leave taken pursuant to part VI of chapter 378 as provided in section 378‑ ; and
(D) Insurance protections for victims of domestic or sexual violence as provided in sections 431:10‑217.5, 432:1-101.6, 432:2-103.5, 432D-27, and 432E‑ ; and
(2) Case workers and other agency personnel responsible for administering the State public assistance program funded under Section 402 of the Social Security Act are adequately trained in:
(A) The nature and dynamics of domestic or sexual violence, and how to identify such cases;
(B) State standards and procedures relating to the prevention of and assistance for individuals who experience, domestic or sexual violence; and
(C) Methods of ascertaining and keeping confidential information about possible experiences of domestic or sexual violence."
PART V INSURANCE
SECTION 17. Chapter 431, Hawaii Revised Statutes, is amended by adding a new section to be appropriately designated and to read as follows:
"§431‑ Policies relating to domestic abuse cases; enforcement. (a) Any act or practice prohibited by section 431:10-217.5 shall be enforceable by the same means and with the same jurisdiction, powers, and duties as provided under section 431:2-203.
(b) An applicant or insured who believes that they have been adversely affected by an act or practice of an insurer in violation of section 431:10-217.5 may maintain a private cause of action against the insurer in a federal or State court of original jurisdiction. Upon proof of that conduct by a preponderance of the evidence, the court may award appropriate relief, including temporary, preliminary, and permanent injunctive relief and compensatory and punitive damages, as well as the costs of suit and reasonable fees for the aggrieved individual's attorneys and expert witnesses.
(c) With respect to compensatory damages in an action described in subsection (b), the aggrieved individual may elect, at any time prior to the rendering of final judgment, to recover in lieu of actual damages, an award of statutory damages in the amount of $5,000 for each violation."
SECTION 18. Chapter 432E, Hawaii Revised Statutes, is amended by adding a new section to be appropriately designated and to read as follows:
"§432E‑ Domestic abuse; prohibition on termination. (a) No managed care plan may terminate health coverage for a subject of domestic abuse because coverage was originally issued in the name of the abuser and the abuser has divorced, separated from, or lost custody of the subject of domestic abuse, or the abuser's coverage has terminated voluntarily or involuntarily and the subject of domestic abuse does not qualify for an extension of coverage under Part 6 of Subtitle B of Subchapter I of the Employee Retirement Income Security Act of 1974, 29 U.S.C. 1161 et seq. or Section 4980B (with respect to failure to satisfy continuation coverage requirements of group health plans) of the Internal Revenue Code.
(b) Nothing in subsection (a) shall be construed to prohibit the managed care plan from requiring that the subject of domestic abuse pay the full premium for the subject's coverage under the health plan if the requirements are applied to all insureds of the managed care plan.
(c) A managed care plan may terminate group coverage to which this section applies after the continuation coverage period required by this section has been in force for eighteen months if it offers conversion to an equivalent individual plan.
(d) The continuation of health coverage required by this section shall be satisfied by any extension of coverage under Part 6 of Subtitle B of Subchapter I of the Employee Retirement Income Security Act of 1974, 29 U.S.C. 1161 et seq. or Section 4980B of the Internal Revenue Code provided to a subject of domestic abuse and is not intended to be in addition to any extension of coverage otherwise provided for under Part 6 or Section 4980B.
(e) As used in this section:
"Domestic abuse" means the occurrence of one or more of the following acts by a current or former household or family member, intimate partner, or caretaker:
(1) Attempting to cause or causing another person bodily injury, physical harm, substantial emotional distress, or psychological trauma;
(2) Attempting to engage or engaging in any conduct proscribed by chapter 707, part V;
(3) Engaging in a course of conduct or repeatedly committing acts toward another person, including following the person without proper authority and under circumstances that place the person in reasonable fear of bodily injury or physical harm;
(4) Subjecting another person to unlawful imprisonment or kidnapping; or
(5) Attempting to cause, or causing, damage to property to intimidate or attempt to control the behavior of another person.
"Subject of domestic abuse" means a person:
(1) Against whom an act of domestic abuse has been directed;
(2) Who has prior or current injuries, illnesses, or disorders that resulted from domestic abuse; or
(3) Who seeks, may have sought, or had reason to seek medical or psychological treatment for domestic abuse, protection, court-ordered protection, or shelter from domestic abuse."
SECTION 19. Section 431:10-217.5, Hawaii Revised Statutes, is amended to read as follows:
"[[]§431:10-217.5[]]
Policies relating to domestic abuse cases. (a) No insurer shall deny
or refuse to accept an application for insurance, refuse to insure, refuse to
renew, cancel, restrict, or otherwise terminate a policy of insurance, or
charge a different rate for the same coverage, on the basis that the applicant
or insured person is, has been, or may be a [victim of domestic abuse.] subject
of domestic abuse.
(b) Nothing in this section shall prevent an insurer from taking any of the actions set forth in subsection (a) on the basis of loss history or medical condition, or for any other reason not otherwise prohibited by this section, any law, regulation, or rule.
(c) Any form filed or filed after July 15,
1998, or subject to a rule adopted under chapter 91 may exclude coverage
for losses caused by intentional or fraudulent acts of any insured. [Such
an] An exclusion, however, shall not apply to deny, or limit
payment of, either directly or indirectly, an insured's otherwise-covered
property loss if:
(1) The property loss is caused by an act of domestic
abuse [by another insured under the policy];
(2) The insured claiming property loss files a police report and cooperates with any law enforcement investigation relating to the act of domestic abuse; and
(3) The insured claiming property loss did not cooperate in or contribute to the creation of the property loss.
[Payment by the insurer to an insured may be
limited to the person's insurable interest in the property less payments made
to a mortgagee or other party with a legal secured interest in the property.
An insurer making payment to an insured under this section has all rights of
subrogation to recover against the perpetrator of the act that caused the loss.]
Subrogation of claims resulting from domestic abuse is prohibited without
the informed consent of the subject of domestic abuse.
(d) Nothing in this section prohibits an insurer from investigating a claim and complying with chapter 431.
[(e) As used in this section,
"domestic abuse" means:
(1) Physical harm, bodily injury, assault,
or the infliction of fear of imminent physical harm, bodily injury, or assault
between family or household members;
(2) Sexual assault of one family or
household member by another;
(3) Stalking of one family or household
member by another family or household member; or
(4) Intentionally, knowingly, or
recklessly causing damage to property so as to intimidate or attempt to control
the behavior of another household member.]
(e) To protect the safety and privacy of subjects of domestic abuse, no person employed by or contracting with an insurer may engage in the following without the consent of the subject of domestic abuse:
(1) Use, disclose, or transfer information relating to domestic abuse status, acts of domestic abuse, domestic abuse-related medical conditions, or the applicant's or insured's status as a family member, employer, associate, or person in a relationship with a subject of domestic abuse for any purpose unrelated to the direct provision of health care services unless the use, disclosure, or transfer is required by an order of an entity with authority to regulate insurance or an order of a court of competent jurisdiction; or
(2) Disclose or transfer information relating to an applicant's or insured's mailing address and telephone number of a shelter for subjects of domestic abuse, unless the disclosure or transfer:
(A) Is required to provide insurance coverage; and
(B) Does not have the potential to endanger the safety of a subject of domestic abuse.
Nothing in this subsection shall be construed to limit or preclude a subject of domestic abuse from obtaining the subject's own insurance records from an insurer.
(f) A subject of domestic abuse, at the subject's absolute discretion, may provide evidence of domestic abuse to an insurer for the limited purpose of facilitating treatment of a domestic abuse-related condition or demonstrating that a condition is domestic abuse-related. Nothing in this subsection shall be construed as authorizing an insurer to disregard this evidence.
(g) Insurers shall develop and adhere to written policies specifying procedures to be followed by employees, contractors, producers, agents, and brokers to protect the safety and privacy of a subject of domestic abuse and otherwise implement this section when taking an application, investigating a claim, or taking any other action relating to a policy or claim involving a subject of domestic abuse.
(h) An insurer that takes an action that adversely affects a subject of domestic abuse shall advise the applicant or insured who is the subject of domestic abuse of the specific reasons for the action in writing. For purposes of this section, reference to general underwriting practices or guidelines shall not constitute a specific reason.
(i) Nothing in this section shall be construed to prohibit a life insurer from declining to issue a life insurance policy if the applicant or prospective owner of the policy is or would be designated as a beneficiary of the policy, and if:
(1) The applicant or prospective owner of the policy lacks an insurable interest in the insured; or
(2) The applicant or prospective owner of the policy is known, on the basis of police or court records, to have committed an act of domestic abuse against the proposed insured.
(j) As used in this section:
"Domestic abuse" means the occurrence of one or more of the following acts by a current or former household or family member, intimate partner, or caretaker:
(1) Attempting to cause, or causing, another person bodily injury, physical harm, substantial emotional distress, or psychological trauma;
(2) Attempting to engage or engaging in any conduct proscribed by chapter 707, part V;
(3) Engaging in a course of conduct or repeatedly committing acts toward another person, including following the person without proper authority and under circumstances that place the person in reasonable fear of bodily injury or physical harm;
(4) Subjecting another person to unlawful imprisonment or kidnapping; or
(5) Attempting to cause, or causing, damage to property to intimidate or attempt to control the behavior of another person.
"Subject of domestic abuse" means:
(1) A person against whom an act of domestic abuse has been directed;
(2) A person who has prior or current injuries, illnesses, or disorders that resulted from domestic abuse; or
(3) A person who seeks, may have sought, or had reason to seek medical or psychological treatment for domestic abuse, protection, court-ordered protection, or shelter from domestic abuse."
SECTION 20. Section 432:1-101.6, Hawaii Revised Statutes, is amended to read as follows:
"§432:1-101.6 Policies relating to
domestic abuse cases. (a) No mutual benefit society shall deny or refuse
to accept an application for insurance, refuse to insure, refuse to renew, cancel,
restrict, or otherwise terminate a policy of insurance, or charge a different
rate for the same coverage, on the basis that the member or prospective member
is, has been, or may be a [victim of domestic abuse.] subject of
domestic abuse.
(b) Nothing in this section shall prevent a mutual benefit society from taking any of the actions set forth in subsection (a) on the basis of loss history or medical condition, or for any other reason not otherwise prohibited by this section or any other law, regulation, or rule.
(c) Any form filed or filed after July 15, 1998, or subject to a rule adopted under chapter 91 may exclude coverage for losses caused by intentional or fraudulent acts of any member of the society.
(d) Nothing in this section prohibits a mutual benefit society from investigating a claim and complying with chapter 432.
[(e) As used in this section,
"domestic abuse" means:
(1) Physical harm, bodily injury, assault,
or the infliction of fear of imminent physical harm, bodily injury, or assault
between family or household members;
(2) Sexual assault of one family or
household member by another;
(3) Stalking of one family or household
member by another family or household member; or
(4) Intentionally, knowingly, or recklessly
causing damage to property so as to intimidate or attempt to control the
behavior of another household member.]
(e) To protect the safety and privacy of subjects of domestic abuse, no person employed by or contracting with a mutual benefit society may engage in the following without the consent of the subject of domestic abuse:
(1) Use, disclose, or transfer information relating to domestic abuse status, acts of domestic abuse, domestic abuse-related medical conditions, or the prospective member's or member's status as a family member, employer, associate, or person in a relationship with a subject of domestic abuse for any purpose unrelated to the direct provision of health care services unless such use, disclosure, or transfer is required by an order of an entity with authority to regulate insurance or an order of a court of competent jurisdiction; or
(2) Disclose or transfer information relating to a prospective member's or member's mailing address and telephone number of a shelter for subjects of domestic abuse, unless the disclosure or transfer:
(A) Is required to provide insurance coverage; and
(B) Does not have the potential to endanger the safety of a subject of domestic abuse.
Nothing in this subsection shall be construed to limit or preclude a subject of domestic abuse from obtaining the subject's own insurance records from a mutual benefit society.
(f) A subject of domestic abuse, at the subject's absolute discretion, may provide evidence of domestic abuse to a mutual benefit society for the limited purpose of facilitating treatment of a domestic abuse-related condition or demonstrating that a condition is domestic abuse-related. Nothing in this subsection shall be construed as authorizing a mutual benefit society to disregard this evidence.
(g) Mutual benefit societies shall develop and adhere to written policies specifying procedures to be followed by employees, contractors, producers, agents, and brokers to protect the safety and privacy of a subject of domestic abuse and otherwise implement this section when taking an application, investigating a claim, or taking any other action relating to a policy or claim involving a subject of domestic abuse.
(h) A mutual benefit society that takes an action that adversely affects a subject of domestic abuse shall advise the prospective member or member who is the subject of domestic abuse of the specific reasons for the action in writing. For purposes of this section, reference to general underwriting practices or guidelines shall not constitute a specific reason.
(i) Nothing in this section shall be construed to prohibit a life insurer from declining to issue a life insurance policy if the applicant or prospective owner of the policy is or would be designated as a beneficiary of the policy, and if the applicant or prospective owner of the policy:
(1) Lacks an insurable interest in the insured; or
(2) Is known, on the basis of police or court records, to have committed an act of domestic abuse against the proposed insured.
(j) As used in this section:
"Domestic abuse" means the occurrence of one or more of the following acts by a current or former household or family member, intimate partner, or caretaker:
(1) Attempting to cause, or causing, another person bodily injury, physical harm, substantial emotional distress, or psychological trauma;
(2) Attempting to engage or engaging in any conduct proscribed by chapter 707, part V;
(3) Engaging in a course of conduct or repeatedly committing acts toward another person, including following the person without proper authority and under circumstances that place the person in reasonable fear of bodily injury or physical harm;
(4) Subjecting another person to unlawful imprisonment or kidnapping; or
(5) Attempting to cause or causing damage to property to intimidate or attempt to control the behavior of another person.
"Subject of domestic abuse" means:
(1) A person against whom an act of domestic abuse has been directed;
(2) A person who has prior or current injuries, illnesses, or disorders that resulted from domestic abuse; or
(3) A person who seeks, may have sought, or had reason to seek medical or psychological treatment for domestic abuse, protection, court-ordered protection, or shelter from domestic abuse."
SECTION 21. Section 432:2-103.5, Hawaii Revised Statutes, is amended to read as follows:
"§432:2-103.5 Policies relating to
domestic abuse cases. (a) No fraternal benefit society shall deny or
refuse to accept an application for insurance, refuse to insure, refuse to
renew, cancel, restrict, or otherwise terminate a policy of insurance, or
charge a different rate for the same coverage, on the basis that the member or
prospective member is, has been, or may be a [victim of domestic abuse.]
subject of domestic abuse.
(b) Nothing in this section shall prevent a fraternal benefit society from taking any of the actions set forth in subsection (a) on the basis of loss history or medical condition, or for any other reason not otherwise prohibited by this section or any other law, regulation, or rule.
(c) Any form filed or filed after July 15, 1998, or subject to a rule adopted under chapter 91 may exclude coverage for losses caused by intentional or fraudulent acts of any benefit member.
(d) Nothing in this section prohibits a fraternal benefit society from investigating a claim and complying with chapter 431.
[(e) As used in this section,
"domestic abuse" means:
(1) Physical harm, bodily injury, assault,
or the infliction of fear of imminent physical harm, bodily injury, or assault
between family or household members;
(2) Sexual assault of one family or
household member by another;
(3) Stalking of one family or household
member by another family or household member; or
(4) Intentionally, knowingly, or recklessly
causing damage to property so as to intimidate or attempt to control the
behavior of another household member.]
(e) To protect the safety and privacy of subjects of domestic abuse, no person employed by or contracting with a fraternal benefit society may engage in the following without the consent of the subject of domestic abuse:
(1) Use, disclose, or transfer information relating to domestic abuse status, acts of domestic abuse, domestic abuse-related medical conditions, or the prospective member's or member's status as a family member, employer, associate, or person in a relationship with a subject of domestic abuse for any purpose unrelated to the direct provision of health care services unless such use, disclosure, or transfer is required by an order of an entity with authority to regulate insurance or an order of a court of competent jurisdiction; or
(2) Disclose or transfer information relating to a prospective member's or member's mailing address and telephone number of a shelter for subjects of domestic abuse, unless disclosure or transfer:
(A) Is required to provide insurance coverage; and
(B) Does not have the potential to endanger the safety of a subject of domestic abuse.
Nothing in this subsection shall be construed to limit or preclude a subject of domestic abuse from obtaining the subject's own insurance records from a fraternal benefit society.
(f) A subject of domestic abuse, at the subject's absolute discretion, may provide evidence of domestic abuse to a fraternal benefit society for the limited purpose of facilitating treatment of a domestic abuse-related condition or demonstrating that a condition is domestic abuse-related. Nothing in this subsection shall be construed as authorizing a fraternal benefit society to disregard evidence.
(g) Fraternal benefit societies shall develop and adhere to written policies specifying procedures to be followed by employees, contractors, producers, agents, and brokers to protect the safety and privacy of a subject of domestic abuse and otherwise implement this section when taking an application, investigating a claim, or taking any other action relating to a policy or claim involving a subject of domestic abuse.
(h) A fraternal benefit society that takes an action that adversely affects a subject of domestic abuse shall advise the prospective member or member who is the subject of domestic abuse of the specific reasons for the action in writing. For purposes of this section, reference to general underwriting practices or guidelines shall not constitute a specific reason.
(i) Nothing in this section shall be construed to prohibit a life insurer from declining to issue a life insurance policy if the applicant or prospective owner of the policy is or would be designated as a beneficiary of the policy, and if the applicant or prospective owner of the policy:
(1) Lacks an insurable interest in the insured; or
(2) Is known, on the basis of police or court records, to have committed an act of domestic abuse against the proposed insured."
(j) As used in this section:
"Domestic abuse" means the occurrence of one or more of the following acts by a current or former household or family member, intimate partner, or caretaker:
(1) Attempting to cause or causing another person bodily injury, physical harm, substantial emotional distress, or psychological trauma;
(2) Attempting to engage or engaging in any conduct proscribed by chapter 707, part V;
(3) Engaging in a course of conduct or repeatedly committing acts toward another person, including following the person without proper authority and under circumstances that place the person in reasonable fear of bodily injury or physical harm;
(4) Subjecting another person to unlawful imprisonment or kidnapping; or
(5) Attempting to cause or causing damage to property so as to intimidate or attempt to control the behavior of another person.
"Subject of domestic abuse" means a person:
(1) Against whom an act of domestic abuse has been directed;
(2) Who has prior or current injuries, illnesses, or disorders that resulted from domestic abuse; or
(3) Who seeks, may have sought, or had reason to seek medical or psychological treatment for domestic abuse, protection, court-ordered protection, or shelter from domestic abuse."
SECTION 22. Section 432D-27, Hawaii Revised Statutes, is amended to read as follows:
"§432D-27 Policies relating to
domestic abuse cases. (a) No health maintenance organization shall deny
or refuse to accept an application for insurance, refuse to insure, refuse to
renew, cancel, restrict, or otherwise terminate a policy of insurance, or
charge a different rate for the same coverage, on the basis that the applicant
or enrollee is, has been, or may be a [victim of domestic abuse.] subject
of domestic abuse.
(b) Nothing in this section shall prevent a health maintenance organization from taking any of the actions set forth in subsection (a) on the basis of loss history or medical condition, or for any other reason not otherwise prohibited by this section or any other law, regulation, or rule.
(c) Any form filed or filed after July 15, 1998, or subject to a rule adopted under chapter 91 may exclude coverage for losses caused by intentional or fraudulent acts of any enrollee.
(d) Nothing in this section prohibits a health maintenance organization from investigating a claim and complying with chapter 432D.
[(e) As used in this section,
"domestic abuse" means:
(1) Physical harm, bodily injury, assault,
or the infliction of fear of imminent physical harm, bodily injury, or assault
between family or household members;
(2) Sexual assault of one family or
household member by another;
(3) Stalking of one family or household
member by another family or household member; or
(4) Intentionally, knowingly, or recklessly
causing damage to property so as to intimidate or attempt to control the
behavior of another household member.]
(e) To protect the safety and privacy of subjects of domestic abuse, no person employed by or contracting with a health maintenance organization may engage in the following without the consent of the subject of domestic abuse:
(1) Use, disclose, or transfer information relating to domestic abuse status, acts of domestic abuse, domestic abuse-related medical conditions, or the applicant's or enrollee's status as a family member, employer, associate, or person in a relationship with a subject of domestic abuse for any purpose unrelated to the direct provision of health care services unless such use, disclosure, or transfer is required by an order of an entity with authority to regulate insurance or an order of a court of competent jurisdiction; or
(2) Disclose or transfer information relating to an applicant's or insured's mailing address and telephone number of a shelter for subjects of domestic abuse, unless such disclosure or transfer:
(A) Is required to provide insurance coverage; and
(B) Does not have the potential to endanger the safety of a subject of domestic abuse.
Nothing in this subsection shall be construed to limit or preclude a subject of domestic abuse from obtaining the subject's own insurance records from a health maintenance organization.
(f) A subject of domestic abuse, at the subject's absolute discretion, may provide evidence of domestic abuse to a health maintenance organization for the limited purpose of facilitating treatment of a domestic abuse-related condition or demonstrating that a condition is domestic abuse-related. Nothing in this subsection shall be construed as authorizing a health maintenance organization to disregard evidence.
(g) Health maintenance organizations shall develop and adhere to written policies specifying procedures to be followed by employees, contractors, producers, agents, and brokers to protect the safety and privacy of a subject of domestic abuse and otherwise implement this section when taking an application, investigating a claim, or taking any other action relating to a policy or claim involving a subject of domestic abuse.
(h) A health maintenance organization that takes an action that adversely affects a subject of domestic abuse shall advise the applicant or enrollee who is the subject of domestic abuse of the specific reasons for the action in writing. For purposes of this section, reference to general underwriting practices or guidelines shall not constitute a specific reason.
(i) As used in this section:
"Domestic abuse" means the occurrence of one or more of the following acts by a current or former household or family member, intimate partner, or caretaker:
(1) Attempting to cause, or causing, another person bodily injury, physical harm, substantial emotional distress, or psychological trauma;
(2) Attempting to engage or engaging in any conduct proscribed by chapter 707, part V;
(3) Engaging in a course of conduct or repeatedly committing acts toward another person, including following the person without proper authority and under circumstances that place the person in reasonable fear of bodily injury or physical harm;
(4) Subjecting another person to unlawful imprisonment or kidnapping; or
(5) Attempting to cause, or causing, damage to property to intimidate or attempt to control the behavior of another person.
"Subject of domestic abuse" means a person:
(1) Against whom an act of domestic abuse has been directed;
(2) Who has prior or current injuries, illnesses, or disorders that resulted from domestic abuse; or
(3) Who seeks, may have sought, or had reason to seek medical or psychological treatment for domestic abuse, protection, court-ordered protection, or shelter from domestic abuse."
PART VI MISCELLANEOUS
SECTION 23. 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 24. In codifying the new sections added by section 16 of this Act, the revisor of statutes shall substitute appropriate section numbers for the letters used in designating the new sections in this Act.
SECTION 25. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.
SECTION 26. This Act shall take effect on July 1, 2050.
Report Title:
Domestic Violence Omnibus
Description:
Provides emergency, nonrecurring, benefits for victims of domestic or sexual violence and expands current provisions for unemployment insurance, emergency leaves of absence, and insurance protections. Effective 7/1/2050. (SD1)
The summary description of legislation appearing on this page is for informational purposes only and is not legislation or evidence of legislative intent.
