Hawaii Employment Law Basics: Statutory Leaves of Absences

Employment policies may provide for many different leaves of absence.  Except for leave to vote, no Hawaii law requires paid leave for any leave of absence.  Here is a brief summary of statutorily-protected leaves of absence in Hawaii.

Leave to Vote:  Under HRS § 11-95, if an employee is unable to vote before or after working hours, the law entitles employees to take up to two consecutive hours of paid time to vote on election days.  Other than HRS § 11-95, paid leaves of absences are not required by those Hawaii statutes giving employees the right to take leave.

Military Service Related Leave:  Hawaii law, HRS § 121-43, protects employees who need leave to apply for, serve in, or attend training in any branch of the military, including the Reserves, or State National Guard.  In addition, the Uniformed Services Employment and Reemployment Rights Act (“USERRA”), 38 U.S.C. § 4301 et seq., contains anti-discrimination, leave protection, and reemployment provisions covering members of the Armed Forces, Reserves, National Guard, and the commissioned corps of the Public Health Service.

Jury Duty Leave:  Federal and Hawaii law protect employees from discharge, threats, or coercion when the employee receives a court summons, is subpoenaed as a witness, serves as a juror, or attends court for prospective jury service.  See 28 U.S.C. § 1875 and HRS § 612-25.  No state or federal law requires employers to reimburse employees for the difference between jury or witness fees and their regular pay.

Leave to Care for Family Members or Employee’s Own Health Condition:  Generally, the Family Medical Leave Act (“FMLA”) applies to all private employers who have 50 or more employees for each working day of 20 or more (not necessarily consecutive) calendar workweeks in the current or preceding calendar year.  FMLA requires covered employers to allow eligible employees to take up to 12 weeks of unpaid leave for the birth or adoption of a child, to care for a child, parent, or spouse who suffers from a “serious health condition,” if the employee’s own serious health condition makes them unable to perform one or more essential functions of the job, or for certain qualifying exigencies.  An eligible employee under FMLA has been employed by the employer for 12 months and has worked 1,250 hours during the preceding 12 months.

Under the Hawaii Family Leave Law (“HFLL”), employers with more than 100 employees (determined in a manner similar to FMLA) must comply with both FMLA and HFLL.  Generally, HFLL does not cover eligible employees that take leave for their own serious health condition, but only leave taken for an employee’s in-laws, grandparents and reciprocal beneficiaries.  HFLL provides only four weeks of leave instead of FMLA’s 12 weeks.  An employee eligible for leave under HFLL need only to have been employed for six months for the covered employer, regardless of the number of hours worked.

Leave Due to Pregnancy or Related Conditions:  Hawaii law requires that employers grant a female employee disabled due to pregnancy, childbirth or related medical conditions a leave of absence, with or without pay, for a “reasonable period of time” as determined by the employee’s physician.  See Haw. Admin. Rules § 12-46-108.  Upon her return, the employee must be reinstated to her original job or to a position of comparable status and pay, without loss of accumulated service credits and privileges.

Also, the Hawaii Civil Rights Commission’s regulations mandate that pregnant employees are entitled to “all reasonable accommodations.”

“Victims” Leave:  All Hawaii employers are required to provide at least five days of unpaid victims leave during a calendar year to an employee who has worked at least six months.  Employers with 50 or more employees must provide an additional 25 days of unpaid victims leave for a total of 30 days. 

To be eligible for victims leave, the employee must provide reasonable notice prior to taking the leave and certification that the employee or the employee’s minor child is a victim of domestic or sexual violence.  However, the notice requirement may be waived if notice is not practicable due to imminent danger to the employee or the employee’s minor child.

Health Care Benefits During Extended Leave for Medical Reasons:  The Hawaii Prepaid Health Care Act, HRS § 393-15, requires continued payments by an employer of individual premiums for three months following either the month in which the employee becomes disabled or is hospitalized, or the last month in which regular wages are paid, whichever is longer.