FMLA - Hawaii

Family Leave Act

Hawaii’s Family Leave Act applies to all public and private employers with 100 or more employees. FMLA, however, applies to employers with 50 or more employees. The federal Act, therefore, applies to more employers.

Domestic/sexual violence leave

The Hawaii Victims Protection Law requires employers with 50 or more employees to provide up to 30 days of unpaid leave in a calendar year for domestic or sexual violence victims. Employers with 49 or fewer employees are to provide up to five days of unpaid leave in a calendar year. Employees must have worked for the employer for at least six consecutive months.

Employees are entitled to a reasonable period of time off for qualifying reasons. The “reasonable period of time” is defined as the following:

• 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.
• 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.

The employee must provide reasonable notice of the leave, unless doing so is not practicable due to imminent danger.

The employee or the employee's minor child must be a victim of domestic or sexual violence, and the reason for leave is for the following:

• Seek medical attention,
• Obtain services from a victim services organization,
• Obtain psychological or other counseling,
• Temporarily or permanently relocate, or
• Take legal action.

Employers may request a certification supporting the need for leave. This could be from a health care provider, a victim’s service organization, attorney, or advocate, or may be in the form of a police or court record.

Employers may require an employee on victim leave to report not less than once a week on his or her status and intention to return to work.

Upon return from leave, the employee must be returned to his or her original job or to a position of comparable status and pay, without loss of accumulated service credits and privileges.

Information obtained relating to such leave is to be kept confidential.

Leave for organ, bone marrow, or stem cell donation

The law covers private employers with at least 50 employees. Employees are eligible if they worked for a company for at least one year before leave is to begin. Eligible employees may take up to seven days of job-protected leave each calendar year to serve as a bone marrow or peripheral blood stem cell donor. Employees may take up to 30 days of such leave each calendar year to serve as an organ donor.

Employees are to submit written verification that they are donors and there is a medical necessity for the donation.

During leave, group health care coverage is to be maintained in the same manner as if the employee had not taken leave.

Employers may require employees to use up to three days of earned but unused paid or unpaid time off for bone marrow or stem cell donation, and up to two weeks of such accrued time off for organ donation.

Leave taken under this provision does not run concurrent with leave under the federal FMLA.

Temporary disability insurance

Employers, with limited exceptions, must have temporary disability insurance (TDI). Employers purchase insurance or have a self-insured plan that is approved by the HI Department of Labor’s Disability Compensation Division.

The employer’s plan determines how much benefit employees will receive each week, how long they will be paid, and whether they have to serve a waiting period.

Employees must have at least 14 weeks of Hawaii employment during each of which the employee was paid for 20 hours or more and earned not less than $400 in the 52 weeks preceding the first day of disability. The 14 weeks need not be consecutive nor with only one employer.

The employee must also be in current employment to be eligible.

Employees may receive up to 26 weeks of benefit payments during a benefit year. The benefit year generally begins when an employee has a non-work-related injury or illness.

Employees receive the benefits if they:

• Have an injury or illness that is not work-related; not caused by the job.
• The injury or illness prevents them from performing their regular duty.
• The disability is certified by and they are under the care of a licensed physician, surgeon, dentist, chiropractor, osteopath, naturopath, physician assistant, advanced practice registered nurse, or an accredited practitioner of a faith-healing group.
• They were employed immediately before the date they suffered the injury or illness, or if they were separated from the job, their disability occurred within two weeks from their last day of work. Current employment includes the period they were receiving vacation or sick leave pay, TDI benefits or workers’ compensation benefits for temporary total disability.

Leave under the insurance plan can run concurrently with FMLA leave if the employer is covered by both, the employee is eligible for both, and the reason qualifies for both.

Employees are to immediately notify their employer of the disability. They must file a claim for benefits. Employers also complete part of the claim form.