Hawaii Family Leave Law

The Hawaii Family Leave Act ("HFLA"), Chapter 398, Haw. Rev. Stat., requires employers who employ one hundred (100) or more employees for each working day during each of twenty (20) or more calendar weeks in the current or preceding calendar year to provide up to four (4) weeks of family leave during any calendar year upon the birth of a child or the adoption of a child, or to care for the employee's reciprocal beneficiary, child, spouse, or parent with a serious health condition. The family leave may consist of unpaid or paid leave, or a combination. An employee or employer may elect to use any of the employee's applicable accrued paid leave such as sick, vacation, personal, or family leave for any part of the four (4) week period.

Employers who are covered by the Hawai'i Family Leave Law are required to allow eligible employees to use up to ten (10) days per year of their accrued and available sick leave for any of the purposes listed in the HFLA (birth or adoption of a child, or to care for the employee's child, spouse, reciprocal beneficiary, or parent with a serious health condition). HRS § 398-4(c). However, the HFLA exempts temporary disability benefits from the definition of "sick leave"  If an employer establishes a self-insured TDI plan (which must be approved by the Hawaii Department of Labor and Industrial Relations) which incorporates sick leave benefits, the benefits provided under its self-insured plan to the extent they exceed the statutory minimum required to comply with the TDI law, may be used for HFLA purposes.

1. Eligibility

HFLA requires employers to grant leave to any employee who has been employed for six (6) consecutive months.

2. Serious Health Condition

HFLA requires the employer to grant minimum leave needed to care for a serious health condition of the employee's child, reciprocal beneficiary, spouse or parent.

3. Health Care Provider

HFLA defines a health care provider as a licensed doctor of medicine, dentistry, chiropractic, osteopathy, naturopathy, psychologists, optometry, and podiatry.

4. Certifications

HFLA authorizes employers to require certification by a health care provider and/or appropriate agency or adoption service for an employee's absence due to the need to care for a family member with a serious health condition, or birth/adoption or placement of foster care.

5. Family Members

Under HFLA, a parent includes biological, foster, or adoptive; in-laws; step-parents; legal guardians; grandparents; and grandparents-in-law.  Child refers to biological, step, foster, or adopted.

6. Intermittent Leave

HFLA requires an employer to grant intermittent or reduced work schedule as authorized family leave for all purposes.  Therefore, for employers covered by both state and federal law, up to four (4) weeks must be permitted as intermittent leave for any reason.  Thereafter, the limitations applicable under federal law apply.

7. Time Period

While federal law places a cap of twelve (12) weeks leave due to childbirth, adoption or foster care placement for both parents when both work for the same employer, state law has no such combined limitation.  Therefore, each employee, if both work for the same company, is entitled to a minimum of four (4) weeks of leave, if eligible, under state law to care for a newborn child or bond with such newborn, adopted or foster child.  Such leave must be taken within the first year after childbirth, adoption or placement for foster care.

Employers subject to federal law have the option of choosing any twelve (12) month period for purposes of calculating entitlement to the twelve (12) week leave; i.e., employers may choose a calendar year, a fiscal year, or a rolling twelve (12) month period.

State law provides that the four (4) week leave entitlement is per calendar year; however, an employee is not eligible for any more than four (4) weeks of leave in any twelve (12) month period.

Therefore, employers who choose a fiscal year basis for providing the twelve (12) week entitlement under federal law must ensure employees receive at least the four (4) calendar weeks during any twelve (12) month period.

8. Notice and Reinstatement

Employers have the right to designate any leave as family leave if it otherwise falls within the protected leave.  Therefore, most workers' compensation, temporary disability insurance leave, and maternity leave qualify as family leave and may be charged against an employee's leave entitlement.  Once the leave is exhausted, other laws may protect employees after the twelve (12) week protected period under federal family leave or the four (4) week protected leave period under state leave laws are exhausted.  For example, state workers' compensation law, the duty of reasonable accommodation under disability law, as well as the state's sex discrimination law regarding pregnancy leave may protect employees beyond the periods of protection provided by the family leave laws.

HFLA requires employees to provide reasonable notice if the condition for which the leave is needed is foreseeable.  No specific form of notice is required.  An oral or verbal request for leave giving the employer sufficient information to understand the purpose of the leave is sufficient notice.

HFLA requires that the employee be restored to the same or equivalent position in all terms and conditions, including shifts and unique conditions of a particular job, at the conclusion of the leave. If leave is considered intermittent during any period of light duty work, the employee is likewise entitled to reinstatement to his or her former position at the conclusion of the light duty, which is not to exceed twelve (12) weeks under federal leave laws.

Neither state, nor federal law requires the accrual of additional benefits during the leave.  At the conclusion of the leave, however, employees must be reinstated to all benefit programs such as life insurance and group disability plans, without any additional waiting period or additional premium.