Hawaii Employment Law Basics: Hawaii Sick Leave Law

Under Hawaii law, paid sick leave is a discretionary benefit. Employers aren't required to offer paid sick leave, except under the Hawaii Temporary Disability Insurance (TDI) program. Sick leave is generally considered a short-term benefit that enables an employee to be paid for time when the employee was scheduled to work but was unable to do so because of personal illness or injury.

Hawaii law permits employers to customize their TDI policy, as long as the policy is equivalent to the mandated benefit. Some employers choose to use their temporary disability insurance as their sick leave policy or to integrate paid sick leave with their TDI plan. These employers must have their equivalent plans approved by the Hawaii Department of Labor and Industrial Relations (DLIR).

Employers with paid sick leave policies who are covered by the Hawaii Family Leave Law (HFLL) must allow eligible employees to use up to ten days of accrued and available sick leave for HFLL purposes. Thus, even if paid sick leave is normally to be used only for an employee's own illness or injury, employees covered by the HFLL may use up to ten days of sick leave for any HFLL purpose, such as caring for a seriously ill family member.

The exception is that benefits provided under a Hawaii DLIR-approved TDI plan that incorporates sick leave benefits are not subject to the HFLL.

Hawaii employers should specify how sick leave is earned, accrued, and used. A written policy should set forth how many (for example, seven) days of unused sick leave may be carried over into the following year. However, the number of days that may be carried over is discretionary.

Sick leave policies may provide that employees cannot carry accrued sick days over into the following year; in other words, accrued but unused sick leave at the end of the year is forfeited. They may also state that the employer will pay out accrued but unused sick leave at the end of each year, rather than carry it over to the next year.

Unless a Hawaii employer has legitimate grounds to suspect that a particular employee is abusing sick leave, or that the employee is incapable of performing his or her job functions, employers should generally limit the required medical certification upon an employee’s return from sick leave to a statement that the employee was "unable to work." Such a request (unlike a diagnosis) does not elicit information about a potential health impairment or disability protected from disclosure. Employers and employees alike, however, need to be aware that other laws (including the FMLA, the HFLL, or the Americans with Disabilities Act) may permit a request for information regarding a diagnosis.

As an alternative to separate sick leave and vacation policies, employers are increasingly utilizing a personal time off or "PTO" policy. PTO policies provide employees with a bank of paid leave to be used for vacations, illness, or any other purpose. As long as PTO can be used for sick leave, an employer subject to the HFLL must allow employees to use up to ten days of accrued PTO for HFLL leave.

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