Family, Medical and Parental Leaves Law Summaries

Family, Medical and Parental Leaves Law Summaries

Hawaii, Family, Medical and Parental Leaves Law Summaries

Hawaii's family leave law is located in the Hawaii Code Annotated at Division 1, Title 21, Chapter 398, Parts I and II. The full text of the law is available beginning at Employment Practices Guide ¶12-22,450.01 .

The Hawaii Victims Leave Act was added by S. 931, L. 2003, effective January 1, 2004.

The state has also enacted a law providing parent-teacher conference leave for public employees (S. 205, L. 2003, effective May 30, 2003), and a law allowing leave for public employees to donate bone marrow or organs (Act 176 (H. 1318), L. 2005).

See ¶12-1400 for provisions relating to break requirements for nursing mothers.

DEFINITIONS

“Employee” means a person who performs services for hire for not fewer than six consecutive months for the employer from whom benefits are sought under Hawaii's family leave law (Sec. 398-1, as amended by Act 154, L. 1995).

“Employer” means any individual or 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 employs 100 or more employees for each working day during each of 20 or more calendar weeks in the current or preceding calendar year (Sec. 398-1, as amended by H. 389, L. 2003, effective July 1, 2003).

“Sick leave” means accrued increments of compensated leave provided by an employer to an employee for use by the employee for any of the following reasons (Sec. 398-1, as amended by H. 325, L. 2005):

1. The employee is physically or mentally unable to perform the employee's duties due to illness, injury or a medical condition of the employee;

2. The absence is for the purpose of obtaining professional diagnosis or treatment for a medical condition of the employee; or

3. The absence is for other medical reasons of the employee, such as pregnancy or obtaining a physical examination.

“Sick leave” shall not include any insurance benefit, workers' compensation benefit, unemployment compensation due to illness or disability, or temporary disability insurance benefit (Sec. 398-1, as amended by H. 325, L. 2005).

The following definitions apply to the Hawaii Victims Leave Act:

“Domestic or sexual violence” means domestic abuse, sexual assault or stalking. “Stalking” means engaging in a course of conduct directed at a specifically 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 he conduct does cause the targeted person to have such distress or fear (Sec. 378-A, as added by S. 931, L. 2003, effective January 1, 2004).

“Employee” means a person who performs services for hire for not fewer than six consecutive months for the employer from whom benefits are sought under the Hawaii Victims Leave Act (Sec. 378-A, as added by S. 931, L. 2003, effective January 1, 2004).

COVERAGE

Both private employers and the state are covered by Hawaii's family leave law (Sec. 398-1, as amended by Act 154, L. 1995).

EXCEPTIONS

Small employers.- The rights provided under Hawaii's family leave law do not apply to employees of an employer with fewer than 100 employees (Sec. 398-2).

Reinstatement.- If during a leave, the employer experiences a layoff or workforce reduction and the employee would have lost a position had the employee not been on family leave, the employee is not entitled to reinstatement in the former or equivalent position, but retains all rights, including seniority rights, pursuant to the good faith operation of a bona fide layoff and recall system (Sec. 398-7).

PROCEDURES

Certification.- An employer may require that a claim for family leave be supported by written certification. For the birth of a child, certification must be issued by a health care provider or the family court. For the placement of a child for adoption with the employee, certification must be issued by a recognized adoption agency, the attorney handling the adoption, or by the individual officially designated by the birth parent to select and approve the adoptive family (Sec. 398-6, as amended by Act 154, L. 1995).

When leave is to care for a child, spouse, or parent who has a serious health condition, certification must be issued by the health care provider of the individual requiring care. Certification is considered sufficient if it provides information as required by the Director of Labor and Industrial Relations (Sec. 398-6, as amended by Act 154, L. 1995).

Collective bargaining agreements.- Hawaii's family leave law does not modify, eliminate, or otherwise abrogate any existing employment benefits or protections that employees may have pursuant to employment contracts or collective bargaining agreements, to the extent that the contracts and agreements provide greater protections than those afforded under the law. To the extent the provisions of the family leave law contradict or otherwise conflict with any contract rights or collective bargaining agreements in existence as of January 1, 1992, the provisions that provide greater benefits to the employees control (Sec. 398-10).

WHAT THE EMPLOYER MUST DO

Family medical leave

Payment for leave.- Family leave consists of unpaid leave, paid leave, or a combination of paid and unpaid leave. If an employer provides paid family leave for fewer than four weeks, the additional period of leave added to attain the four-week total may be unpaid. Except as otherwise provided in Sec. 398-4(c) below, an employee may elect to substitute any of the employee's accrued paid leaves, including but not limited to vacation, personal, or family leave, for any part of the four-week period of family leave (Sec. 398-4(a), as amended by H. 389, L. 2003; and Sec. 398-4(b), as amended by S. 1833, L. 2007, effective July 1, 2007).

An employer who provides sick leave for employees shall permit an employee to use the employee's accrued and available sick leave for purposes of this chapter; provided that an employee shall not use more than 10 days per year for this purpose, unless an express provision of a valid collective bargaining agreement authorizes the use of more than 10 days of sick leave for family leave purposes. Nothing in this section shall require an employer to diminish an employee's accrued and available sick leave below the amount required pursuant to Sec. 392-41; provided that any sick leave in excess of the minimum statutory equivalent for temporary disability benefits as determined by the department may be used for purposes of this chapter (Sec. 398-4(c), as amended by H. 325, L. 2005).

If unpaid family leave conflicts with the unreduced compensation requirement for exempt employees under the federal Fair Labor Standards Act, an employer may require the employee to make up the leave within the same pay period (Sec. 398-3, as amended by Act 383 (H. 118), L. 1997).

Reasons for leave.- An employee is entitled to a total of four weeks of family leave during any calendar year upon the birth of a child of the employee or the adoption of a child, or to care for the employee's child, spouse, reciprocal beneficiary or parent with a serious health condition. No employee is entitled to more than a total of four weeks of leave in any 12-month period (Sec. 398-3, as amended by Act 383 (H. 118), L. 1997).

Length of leave.- Employees are entitled to four weeks of family leave (Sec. 398-4, as amended by H. 389, L. 2003, effective July 1, 2003).

Intermittent leave.- During each calendar year, leave may be taken intermittently (Sec. 398-3, as amended by Act 383 (H. 118), L. 1997).

Cumulative leave.- Leave is not cumulative (Sec. 398-3, as amended by Act 383 (H. 118), L. 1997).

Benefits.- Taking family leave will not result in loss of any employment benefit accrued before the date on which the leave began, except for any paid leave that may have been taken in conjunction with family leave (Sec. 398-7).

Reinstatement.- Upon return from family leave, an employee is entitled to be reinstated to the position of employment held by the employee when the leave began, or restored to an equivalent position with equivalent employment benefits, pay, and other terms and conditions of employment. If during a leave, the employer experiences a layoff or workforce reduction and the employee would have lost a position had the employee not been on family leave, the employee is not entitled to reinstatement in the former or equivalent position. In such circumstances, the employee retains all rights, including seniority rights, pursuant to the good faith operation of a bona fide layoff and recall system (Sec. 398-7).

Retaliation.- It is unlawful for an employer to interfere with, restrain, or deny the exercise of or the attempt to exercise, any right provided under Hawaii's family leave law (Sec. 398-8).

It is unlawful for an employer to discharge or in any other manner discriminate against an individual for opposing any practice made unlawful by Hawaii's family leave law. It is also unlawful for any person to discharge or in any other manner discriminate against an individual because the individual has (Sec. 398-8):

1. filed any charge, or instituted or caused to be instituted any proceeding under or related to the family leave law;

2. given or is about to give any information in connection with any inquiry or proceeding under the family leave law; or

3. testified or is about to testify in any inquiry or proceeding relating to any such right.

Victims' leave

An employer employing 50 or more employees shall allow an employee to take up to 30 days of unpaid victim leave from work per calendar year. An employer with not more than 49 employees shall allow an employee to take up to five days of unpaid leave from work per calendar year, if the employee or the employer's minor child is a victim of domestic or sexual violence. Such leave must be to either (Sec. 378-B(a), as added by S. 931, L. 2003, effective January 1, 2004):

1. seek medical attention for the 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 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.

Reasonable period of time.- 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 above shall be considered by an employee to be a justification for leave for a reasonable amount of time, not to exceed the total number of days allocable for each category of employee as described just above (Sec. 378-B(b), as added by S. 931, L. 2003, effective January 1, 2004).

“Reasonable period of time” means (Sec. 378-B(b), as added by S. 931, L. 2003, effective January 1, 2004):

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.

Medical attention.- 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 (Sec. 378-B(c), as added by S. 931, L. 2003, effective January 1, 2004):

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.

Nonmedical leave.- Where an employee has taken not more than five calendar days of leave for nonmedical 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 Sec. 378-B(a) above. If the leave exceeds five days per calendar year, then the certification shall be provided by one of the following methods (Sec. 378-B(d), as added by S. 931, L. 2003, effective January 1, 2004):

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.

Certification.- If certification is required, no leave shall be protected until a certification is provided to the employer (Sec. 378-B(e), as added by S. 931, L. 2003, effective January 1, 2004).

Notice.- 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 (Sec. 378-B(f), as added by S. 931, L. 2003, effective January 1, 2004).

Employee status.- Nothing is 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 (Sec. 378-B(g), as added by S. 931, L. 2003, effective January 1, 2004).

Return to work.- 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 (Sec. 378-B(h), as added by S. 931, L. 2003, effective January 1, 2004):

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.

Confidentiality.- 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 (Sec. 378-B(i), as added by S. 931, L. 2003, effective January 1, 2004):

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.

Enforcement.- 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 (Sec. 378-B(j), as added by S. 931, L. 2003, effective January 1, 2004).

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 Sec. 378-B(a) above, the employee shall exhaust such other paid and unpaid leave benefits before victim leave benefits 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 Sec. 378-B(a) above (Sec. 378-C, as added by S. 931, L. 2003, effective January 1, 2004).

Employment and collective bargaining agreements.- Nothing in this part shall be construed to supersede any provision of any employment agreement, collective bargaining agreement, or employment benefits program or plan that provides greater benefits or rights than those benefits or rights established under Sec. 378-B above (Sec. 378-D, as added by S. 931, L. 2003, effective January 1, 2004).

Parent-teacher conference leave

Public employees shall be eligible for up to two hours of paid leave during normal business hours to attend either (Sec. 78-31, as amended by H. 1780, L. 2003, effective July 9, 2004):

1. a mutually-scheduled parent-teacher conference for the employee's child attending a public or private school in grades kindergarten through 12; or

2. a mutually-scheduled parent-caregiver conference for a preschool-aged child attending a licensed group child care center;

provided that the time off shall not be credited against vacation or sick leave benefits, if any; and provided further that the provision of paid leave shall not adversely interfere with the operations of the work unit nor require the applicable agency to incur additional human resources or overtime costs.

The employee shall take no more than two mutually-scheduled conferences, per child, in a single calendar year. Travel time shall be included as part of the two hours permitted for each conference (Sec. 78-31, as amended by H. 1780, L. 2003, effective July 9, 2004).

Bone marrow/organ donation leave

Any officer or employee in the service of the state or any of the several counties shall be entitled to (Sec. 1, Act 176 (H. 1318), L. 2005):

1. seven days of paid leave each calendar year to serve as a bone marrow donor; and

2. 30 days of paid leave each calendar year to serve as an organ donor.

NOTICE

See also WHAT THE EMPLOYER MUST DO above.

Leave requests.- When family leave is foreseeable, the employee must provide the employer with prior notice of the expected birth or adoption or serious health condition in a manner that is reasonable and practicable (Sec. 398-5).

POLICIES

Hawaii's family leave law sets a minimum standard that is not intended to replace family leave policies that existed as of January 1, 1992, and that provide for equal or greater employment benefits than those benefits afforded under the law (Sec. 398-10).

ENFORCEMENT

See WHAT THE EMPLOYER MUST DO above.

The Director of Labor and Industrial Relations has jurisdiction over those prohibited acts made unlawful by Hawaii's family leave law (Sec. 398-9, as amended by Act 154, L. 1995).

Complaint.- Any individual claiming to be aggrieved by an alleged unlawful act may file with the Department of Labor and Industrial Relations a verified complaint in writing. The attorney general or the department, in like manner, may file a complaint on behalf of an individual. A complaint may be filed on behalf of a class by the attorney general or the department (Sec. 398-21, as added by Act 154, L. 1995).

No complaint may be filed after the expiration of 90 days after the (Sec. 398-21, as added by Act 154, L. 1995):

1. date of the alleged unlawful act; or

2. date of discovery by the employee of the alleged unlawful act; however, in no event may such a complaint be filed after the expiration of 180 days of the alleged unlawful act.

Settlement.- At any time after the filing of a complaint, but prior to a determination by the department that Hawaii's family leave law has been violated, the parties may agree to resolve the complaint through a predetermination settlement (Sec. 398-22, as added by Act 154, L. 1995).

Investigation and conciliation.- The department may investigate and conciliate any complaint filed under Hawaii's family leave law (Sec. 398-23, as added by Act 154, L. 1995).

Every employer must furnish or provide to the department access to records, documents, and other material to determine compliance with the law. The department has the right to examine, photograph, or copy the material and interview witnesses at the place of employment or business during regular working hours with respect to any matter under the law (Sec. 398-23, as added by Act 154, L. 1995).

The department may require by subpoena the attendance and testimony of witnesses and the production of all records, payrolls, correspondence, documents, and other material relative to any matter under investigation (Sec. 398-23, as added by Act 154, L. 1995).

If the department determines after investigation that Hawaii's family leave law has been violated, the department must inform the employer and attempt to remedy the violation by informal methods, such as conference or conciliation (Sec. 398-23, as added by Act 154, L. 1995).

If the department finds that informal methods will not resolve the complaint, it will issue an order and a demand for compliance (Sec. 398-23, as added by Act 154, L. 1995).

If the department issues an order which finds that an employer has violated Hawaii's family leave law, it may prescribe relief as provided under the law (Sec. 398-23, as added by Act 154, L. 1995).

Appeal and hearing.- Upon appeal by the employer, the order issued by the department is subject to a de novo review by a hearings officer appointed by the Director of Labor and Industrial Relations. Any person aggrieved by the decision of the hearings officer is entitled to judicial review (Sec. 398-24, as added by Act 154, L. 1995).

Civil action.- If an employer fails or neglects to comply with the final order of the department from which no appeal has been taken or the final decision of the hearings officer, the department or the affected employee may apply to any court of competent jurisdiction to enforce the provisions of the final order or decision and for any other appropriate relief. In any proceeding to enforce the provisions of the final order or decision, the department or the affected employee need only file with the court proof that a certified copy of the final order or decision was served. In the case of the final decision, proof that the notice of hearing was given also must be filed with the court (Sec. 398-25, as added by Act 154, L. 1995).

Any action to enforce Hawaii's family leave law, or to recover damages or equitable relief prescribed by the law, may be maintained in any court of competent jurisdiction by any one or more employees for and on behalf of the employee or employees, or the employee or employees may designate an agent or representative to maintain the action (Sec. 398-25, as added by Act 154, L. 1995).

Injunctive relief.- The court also may provide injunctive relief in appropriate circumstances (Sec. 398-27, as added by Act 154, L. 1995).

Compliance review.- The department may investigate whether the terms of an agreement, settlement, order, or decision are being complied with by the employer. If the employer is not in compliance, the department will take appropriate action (Sec. 398-28, as added by Act 154, L. 1995).

WHO TO CONTACT

Contact the Director of Labor and Industrial Relations at 830 Punchbowl Street, Honolulu, HI 96813. Telephone: (808) 586-8844. Fax: (808) 586-9099.

POSTING

See ¶12-9900 .

PENALTIES

In addition to all employment terms and benefits provided under Sec. 398-7, remedies prescribed and ordered by the Department of Labor and Industrial Relations or the court under Hawaii's family leave law may include any legal, equitable, and other relief the department or court deems appropriate (Sec. 398-26, as added by Act 154, L. 1995).

Relief may include (Sec. 398-26, as added by Act 154, L. 1995):

1. the amount of any wages, salary, employment benefits, or other compensation denied or lost to the employee by reason of the violation; or

2. in a case in which wages, salary, employment benefits, or other compensation have not been denied or lost to the employee, any actual monetary losses sustained by the employee as a direct result of the violation, such as the cost of providing care, up to a sum equal to four weeks of wages or salary for the employee.

An employer may be liable for an additional amount as liquidated damages equal to the sum of the applicable amount in items (1) and (2) above, provided that if an employer who has violated Hawaii's family leave law proves to the satisfaction of the department or the court that the act or omission that violated the law was in good faith and that the employer had reasonable grounds for believing that the act or omission was not a violation of the law, the department or court may reduce the amount of the liability to the applicable amount determined under items (1) or (2) above (Sec. 398-26, as added by Act 154, L. 1995).

Any employer who intentionally resists, prevents, impedes, or interferes with the department in the performance of duties pursuant to Hawaii's family leave law, or who in any manner intentionally violates the law, is guilty of a petty misdemeanor (Sec. 398-29, as added by Act 154, L. 1995).

Attorneys' fees.- In any action brought under Hawaii's family leave law, the court will allow, in addition to any judgment awarded to the plaintiff, costs of action, including fees of any nature, and reasonable attorney's fees to be paid by the defendant (Sec. 398-27, as added by Act 154, L. 1995).

<p>Attorneys' fees.— In any action brought under Hawaii's family leave law, the court will allow, in addition to any judgment awarded to the plaintiff, costs of ac</p>

Hawaii, Family, Medical and Parental Leaves Law Summaries

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