HRS §392-1 Short title
392-1. Short title
This chapter shall be known as the "Hawaii Temporary Disability Insurance Law".
L
1969, c 148, pt of §1
Short Title; Purpose; Definitions
HRS div. 1, tit. 21, ch. 392, pt. I
in effectHRS §392-2 Findings and purpose
392-2. Findings and purpose
A large portion of the labor force of this State annually is disabled from pursuing gainful employment by reason of nonoccupational sickness or accident and as a result suffers serious loss of income. In approximately ten per cent of the cases such sickness or accident can be expected to cause disability of more than one week's duration. More than two-fifths of the employees in private employment have either no fixed legal protection against wage loss from disabling nonoccupational sickness or accident, or only protection for a period of one workweek or less; more than one-third of the workers covered by formal sick leave plans are not protected against disability extending beyond two workweeks. Since the hardship for workers and their families mounts with the extension of the duration of the disability from whatever cause, there is a need to fill the existing gaps in protection and to provide benefits to individuals in current employment that will afford to them reasonable compensation for wage loss caused by disabling nonoccupational sickness or accident where the disability is temporary in nature and exceeds the period of one workweek. This legislation is designed not to impede the growth of voluntary plans which afford additional protection.
This chapter shall be liberally construed in
the light of the stated reasons for its enactment and its declared purpose.
[L
1969, c 148, pt of §1]
HRS §392-3 Definitions generally
392-3. Definitions generally
As used in this chapter, unless the context clearly requires otherwise:
"Benefit year" with respect to any
individual means the one-year period beginning with the first day of the first
week of disability with respect to which the individual first files a valid
claim for temporary disability benefits. A subsequent benefit year is the
one-year period following a preceding benefit year, beginning either with the
first:
(1) Day of the first week of disability with respect
to which the individual files a subsequent claim for temporary disability
benefits; or
(2) Workday following the expiration of the preceding
benefit year if a disability for which temporary disability benefits are
payable during the last week of the preceding benefit year continues and the
individual is eligible for further benefit payments.
"Contributions" means the amounts of
money authorized by this chapter to be withheld from employees' wages for the
payment of temporary disability benefits.
"Department" means the department of
labor and industrial relations.
"Director" means the director of
labor and industrial relations.
"Disability" means total inability of
an employee to perform the duties of the employee's employment caused by
sickness, pregnancy, termination of pregnancy, organ donation, or accident
other than a work injury as defined in section 386‑3.
"Employer" means any individual or
type of organization, including the State, any of its political subdivisions,
any instrumentality of the State or its political subdivisions, any
partnership, association, trust, estate, joint stock company, insurance
company, or corporation, whether domestic or foreign, or receiver or trustee in
bankruptcy, or the legal representative of a deceased person, who has one or
more individuals in employment during any day or portion of a day.
"Employment" and "employed"
means service, including service in interstate commerce, performed for wages
under any contract of hire, written or oral, express or implied, with an
employer, except as otherwise provided in sections 392-4 and 392-5.
"Recipient of social service
payments" includes:
(1) A person who is an eligible recipient of social
services such as attendant care and day care services; and
(2) A corporation or private agency that contracts
directly with the department of human services to provide attendant care and
day care services authorized under the Social Security Act, as amended.
"Wages" means all remuneration for
services from whatever source, including commissions, bonuses, tips or
gratuities received in the course of employment from others than the employer
to the extent that they are customary and expected in that type of employment
and reported to the employer for payroll tax deduction purposes, and the cash
value of all remuneration in any medium other than cash.
The director may issue regulations for the
reasonable determination of the cash value of remuneration in any medium other
than cash.
Wages do not include the amount of any payment
specified in section 383-11.
"Weekly benefit amount" means the
amount payable under this chapter for a period of continuous disability
throughout a calendar week. If the period of disability or the initial or
terminal portion thereof is shorter than a calendar week, the benefit amount
payable for that portion shall be the weekly benefit amount multiplied by a
factor consisting of a quotient having the number of workdays lost during the
portion of the week for the enumerator and the number of regular workdays of
the employee during a calendar week for the denominator.
[L 1969, c 148, pt of
§1; am L 1973, c 61, §1; am L 1980, c 32, §1; gen ch 1993; am L 2007, c 259, §4;
am L 2014, c 160, §1; am L 2016, c 55, §15]
HRS §392-4 Place of performance
392-4. Place of performance
(a) "Employment" includes an individual's entire service, performed within or both within and without this State if:
(1) The service is localized in this State; or
(2) The service is not localized in any state but
some of the service is performed in this State and[:]
(A) The individual's base of operation, or,
if there is no base of operation, the place from which such service is directed
or controlled, is in this State; or
(B) The individual's base of operation or
place from which the service is directed or controlled is not in any state in
which some part of the service is performed but the individual's residence is
in this State.
(b) The term "employment" also
includes all service performed by an officer or member of the crew of an
American vessel on or in connection with such vessel; provided that the
operating office from which the operations of the vessel operating on navigable
waters within or within and without the United States is ordinarily and
regularly supervised, managed, directed, and controlled is within this State.
[L 1969, c 148, pt of §1]
HRS §392-5 Excluded services
392-5. Excluded services
"Employment" as defined in section 392-3 shall not include:
(1) Domestic service in a private home, local college
club, or local chapter of a college fraternity or sorority, performed in any
calendar quarter by an individual if the cash remuneration paid by the employer
for such service is less than $225;
(2) Service not in the course of the employer's trade
or business performed in any calendar quarter by an individual, unless the cash
remuneration paid for the service is $50 or more and the service is performed
by an individual who is regularly employed by the employer to perform the
service. An individual shall be deemed to be regularly employed to perform
service not in the course of the employer's trade or business during a calendar
quarter only if:
(A) On each of some twenty-four days during
the quarter the individual performs the service for some portion of the day; or
(B) The individual was regularly employed, as
determined under subparagraph (A), by the employer in the performance of the
service during the preceding calendar quarter;
(3) Service performed on or in connection with a
vessel not an American vessel, if the individual performing the service is
employed on and in connection with the vessel when outside the United States;
(4) Service performed by an individual in (or as an
officer or member of the crew of a vessel while it is engaged in) the catching,
taking, harvesting, cultivating, or farming of any kind of fish, shellfish,
crustacea, sponges, seaweeds, or other aquatic forms of animal and vegetable
life, including service performed as an ordinary incident thereto, except:
(A) The service performed in connection with
a vessel of more than ten net tons (determined in the manner provided for
determining the register tonnage of merchant vessels under the laws of the
United States);
(B) The service performed in connection with
a vessel of ten net tons or less (determined in the manner provided for
determining the register tonnage of merchant vessels under the laws of the
United States) by an individual who is employed by an employer who, for some
portion in each of twenty different calendar weeks in either the current or
preceding calendar year, had in the employer's employ one or more persons
performing the service, whether or not the weeks were consecutive and whether
or not the same individuals performed the service in each week; and
(C) The service performed in connection with
the catching or taking of salmon or halibut for commercial purposes;
(5) Service performed by an individual in the employ
of the individual's son, daughter, or spouse, and service performed by a child
under the age of twenty-one in the employ of the child's father or mother;
(6) Service performed in the employ of the United
States government or an instrumentality of the United States exempt under the
Constitution of the United States from the contributions imposed by this
chapter;
(7) Service performed in the employ of any other
state, or any political subdivision thereof, or any instrumentality of any one
or more of the foregoing that is wholly owned by one or more such states or
political subdivisions; and any service performed in the employ of any
instrumentality of one or more other states or their political subdivisions to
the extent that the instrumentality is, with respect to such service, exempt
from the tax imposed by section 3301 of the Internal Revenue Code;
(8) Service with respect to which temporary
disability compensation is payable for sickness under a temporary disability
insurance system established by an act of Congress;
(9) Service performed in any calendar quarter in the
employ of any nonprofit organization exempt from income tax under section 501
of the Internal Revenue Code, if:
(A) The remuneration for such service is less
than $50;
(B) The service is performed by a student who
is enrolled and is regularly attending classes at a school, college, or
university;
(C) The service is performed by a duly
ordained, commissioned, or licensed minister or licensed minister of a church
in the exercise of the minister's ministry or by a member of a religious order
in the exercise of nonsecular duties required by the order; or
(D) The service is performed for a church by
an employee who fails to meet the eligibility requirements of section 392-25;
(10) Service performed in the employ of a voluntary
employees' beneficiary association providing for the payment of life, sick,
accident, or other benefits to the members of the association or their
dependents, if:
(A) No part of its net earnings inures (other
than through such payments) to the benefit of any private shareholder or
individual; and
(B) Eighty-five per cent or more of its
income consists of amounts collected from members and amounts contributed by
the employer of the members for the sole purpose of making such payments and
meeting expenses;
(11) Service performed in the employ of a voluntary
employees' beneficiary association providing for the payment of life, sick,
accident, or other benefits to the members of the association or their
dependents or their designated beneficiaries, if:
(A) Admission to membership in the
association is limited to individuals who are officers or employees of the
United States government; and
(B) No part of the net earnings of the
association inures (other than through such payments) to the benefit of any
private shareholder or individual;
(12) Service performed in the employ of a school,
college, or university, not exempt from income tax under section 501 of the
Internal Revenue Code, if the service is performed by a student who is enrolled
and is regularly attending classes at the school, college, or university;
(13) Service performed in the employ of any
instrumentality wholly owned by a foreign government, if:
(A) The service is of a character similar to
that performed in foreign countries by employees of the United States
government or of an instrumentality thereof; and
(B) The United States Secretary of State has
certified or certifies to the United States Secretary of the Treasury that the
foreign government, with respect to whose instrumentality exemption is claimed,
grants an equivalent exemption with respect to similar service performed in the
foreign country by employees of the United States government and of
instrumentalities thereof;
(14) Service performed as a student nurse in the
employ of a hospital or a nurses' training school by an individual who is
enrolled and is regularly attending classes in a nurses' training school
chartered or approved pursuant to state law; and service performed as an intern
in the employ of a hospital by an individual who has completed a four years'
course in a medical school chartered or approved pursuant to state law;
(15) Service performed by an individual for an
employer as an insurance producer, if all such service performed by the
individual for the employer is performed for remuneration solely by way of
commission;
(16) Service performed by an individual under the age
of eighteen in the delivery or distribution of newspapers or shopping news, not
including delivery or distribution to any point for subsequent delivery or
distribution;
(17) Service covered by an arrangement between the
department and the agency charged with the administration of any other state or
federal unemployment compensation law pursuant to which all services performed
by an individual for an employer during the period covered by the employer's
duly approved election, are deemed to be performed entirely within the agency's
state;
(18) Service performed by an individual who, pursuant
to the federal Economic Opportunity Act of 1964, is not subject to the federal
laws relating to unemployment compensation;
(19) Domestic in-home and community-based services for
persons with developmental and intellectual disabilities under the medicaid
home and community-based services program pursuant to title 42 Code of Federal
Regulations sections 440.180 and 441.300, and title 42 Code of Federal
Regulations, part 434, subpart A, as amended, or when provided through state
funded medical assistance to individuals ineligible for medicaid, and
identified as chore, personal assistance and habilitation, residential
habilitation, supported employment, respite, and skilled nursing services, as
the terms are defined by the department of human services, performed by an
individual whose services are contracted by a recipient of social service
payments and who voluntarily agrees in writing to be an independent contractor
of the recipient of social service payments;
(20) Domestic services, which include attendant care,
and day care services authorized by the department of human services under the
Social Security Act, as amended, or when provided through state-funded medical
assistance to individuals ineligible for medicaid, when performed by an
individual in the employ of a recipient of social service payments. For the
purposes of this paragraph only, a "recipient of social service
payments" is a person who is an eligible recipient of social services such
as attendant care or day care services;
(21) Service performed by a
vacuum cleaner salesperson for an employing unit, if all such services
performed by the individual for such employing unit are performed for
remuneration solely by way of commission;
(22) Service performed by an individual for an
employer as a real estate salesperson or as a real estate broker, if all the
service performed by the individual for the employer is performed for
remuneration solely by way of commission;
(23) Service performed by an individual for a
corporation if the individual owns at least fifty per cent of the corporation;
provided that no employer shall require an employee to incorporate as a
condition of employment;
(24) Service performed by a member of a limited
liability company if the member is an individual and has a distributional
interest, as defined in section 428-101, of not less than fifty per cent in the
company; provided that no employer shall require an employee to form a limited
liability company as a condition of employment;
(25) Service performed by a partner of a partnership,
as defined in section 425-101, if the partner is an individual; provided that
no employer shall require an employee to become a partner or form a partnership
as a condition of employment;
(26) Service performed by a partner of a limited
liability partnership if the partner is an individual and has a transferable
interest as described in section 425-127 in the partnership of not less than
fifty per cent; provided that no employer shall require an employee to form a
limited liability partnership as a condition of employment; or
(27) Service performed by a sole proprietor.
[L 1969,
c 148, pt of §1; am L 1973, c 108, §1; am L 1978, c 110, §5; am L 1982, c 194,
§3; gen ch 1985; am L 1987, c 339, §4 and c 345, §4; am L 1988, c 141, §35; am
L 1990, c 321, §3; gen ch 1993; am L 1996, c 94, §4; am L 2003, c 212, §6; am L
2007, c 259, §8; am L 2011, c 220, §15; am L 2012, c 157, §2 and c 158, §3; am
L 2016, c 187, §6]
HRS §392-6 Individual in current employment
392-6. Individual in current employment
"Individual in current employment" means:
(1) An individual who performed regular service in
employment immediately or not longer than two weeks prior to the onset of the
sickness or to the accident causing disability and who would have continued in
or resumed employment except for such disability.
(2) An individual who performed regular service in
employment immediately or not longer than two weeks prior to becoming totally
disabled from performing the duties of her employment because of pregnancy or
termination of pregnancy and who would have continued in or resumed such
employment except for such disability.
[L 1969, c 148, pt of §1; am L 1973, c
61, §2]
HRS §392-7 Average weekly wage
392-7. Average weekly wage
The "average weekly wage" for the purpose of computing the weekly benefit amount shall be based upon the wages that the employee would receive from the employee's employer except for the employee's disability. In the case of salaried employees the "average weekly wage" shall be the weekly salary of the employee in the last week prior to the commencement of disability.
[L 1969, c 148, pt of §1; gen ch 1985]
Source: Hawaii State Legislature (capitol.hawaii.gov), via Internet Archive capturesURL: http://www.capitol.hawaii.gov/hrscurrent/Vol07_Ch0346-0398/HRS0392/HRS_0392-.htmFetched: 11/10/2026