HAWAII EMPLOYMENT LAW UPDATE: HAWAII EMPLOYERS WISE TO USE CAUTION WHEN INCORPORATING NEW FMLA RULES INTO LEAVE POLICIES

HAWAII EMPLOYMENT LAW UPDATE:  HAWAII EMPLOYERS WISE TO USE CAUTION WHEN INCORPORATING NEW FMLA RULES INTO LEAVE POLICIES

I.BACKGROUND

The federal 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.

II.FMAL REVISIONS ARE EXTENSIVE

            The changes to FMLA effective January 16, 2009, were extensive and designed to reflect revisions, clarifications, and general reorganization of the regulations. 

Generally, Hawaii employers required to comply with both FMLA and HFLL need to use caution when deciding whether to implement federal law in connection with HFLL.  HFLL regulations make clear that HFLL incorporates federal definitions and interpretation of leave law, unless federal law is less favorable to the employee.  Some regulations may be adopted by Hawaii employers, because they would be viewed as a reasonable interpretation of Hawaii law.   Unfortunately, there are many unresolved issues that will need to be addressed by statutory and regulatory amendments.  

III.REVISIONS, CLARIFICATIONS AND IMPACT

            The more significant FMLA revisions include the following:

A.  Eligibility:  The new FMLA regulations state that the 12 months of employment need not be consecutive, but employers need not count a break-in-service of seven years or more in determining whether an employee has been employed for at least 12 months.

Impact on Hawaii Employers:  HFLL regulations explicitly state that the six-month period of employment must be consecutive.  Accordingly, Hawaii employers covered by HFLL are not required to implement the eligibility provision to their HFLL practices.

B.  Incapacitation:  The new regulations state that the employee must be incapacitated for more than three full calendar days and show “continuing treatment” by a health care provider as defined by FMLA in order to be eligible for leave under the “absence plus treatment” definition of “serious health condition.”  In addition, in order to qualify for leave under the “continuing treatment” definition, the employee must have been treated within the first 30 days of incapacity, must also have seen a health care provider within the first seven days of incapacity, and such “visits” to the health care provider must be in person.

Impact on Hawaii Employers:  This clarification will in many cases result in uncertainty whether leave taken by an employee in connection with continuing treatment of a family member is FMLA-protected leave during the first 30 days of incapacity. 

The Hawaii Department of Industrial Relations (“DLIR”) has expressed its intent to follow FMLA regulations with respect to definitions related to the term “serious health condition.”  In the absence of clarification of the term “continuing treatment” under HFLL by DLIR, the new FMLA definition will also likely apply to Hawaii employers required to comply with both FMLA and HFLL.  Also, despite advances in the area of telemedicine on-line consultations, under the new FMLA regulations only in-person visits to health care providers constitutes treatment.

            C.  Pregnancy:  The FMLA regulations now clarify that only a spouse may receive FMLA leave to care for a pregnant woman.  Thus, a boyfriend, fiancé or even the father (if not also a spouse of the expectant mother) of the unborn child is not eligible to take such leave.

            Impact on Hawaii Employers:  Hawaii regulations explicitly state that an employee may care “for the employee’s child, spouse or reciprocal beneficiary, or parent with a serious health condition.” The provision appears consistent with FMLA’s requirement that the father must be the spouse of a pregnant woman in order to qualify for protected leave.  HFLL regulations, however, do permit family leave to be taken where the unmarried mother and father are “reciprocal beneficiaries.”

            D.  Birth of Child:  The FMLA regulations now clarify that both mother and father may take up to 12 weeks of leave to care for a newborn child with a serious health condition even if both are employed by the same employer.  However, they are limited to 12 weeks total for a health newborn.  Also, intermittent leave is permitted under FMLA only as agreed to by both employee and employer.

            Impact on Hawaii Employers:  HFLL regulations permit intermittent leave under all circumstances and four weeks to be taken by both the mother and father.  Since the FMLA regulations directly contradict Hawaii law and the Hawaii DLIR will interpret HFLL in a manner most favorable to the employee, HFLL will likely continue to permit eligible employees to take intermittent leave under all circumstances.

            E.  Intermittent Leave/Reduced Schedule:  The new regulations state that employees must make a “reasonable effort” to schedule treatment so as not to disrupt unduly an employer’s operations.  Also, an employer may transfer an employee where leave is foreseeable based on planned medical treatment.

            Impact on Hawaii Employers:  The revision to FMLA is significant insofar as the “reasonable effort” standard replaced the word “attempt.”  HFLL is silent on the issue.  Therefore, Hawaii employers that are required to comply with HFLL should approach the issue of an employee scheduling treatments cautiously.  This is one of many significant new FMLA regulations that need to be addressed by the Hawaii legislature and/or DLIR.

 As to the new transfer provision, the DOL balked at permitting a transfer where leave is “unforeseeable.”  The DOL viewed such transfers as potentially retaliatory.  HFLL permits the employer to only “offer” modification of an employee’s job and duties and only where the employee requires intermittent leave.  In addition, HFLL explicitly states that an employee must agree to the transfer proposed by the employer.  Finally, the “alternative transfer or modified position” must have “equivalent pay and benefits of the employee’s regular job, even if the employer must increase the pay and benefits.”

            F.  Substitution of Paid Leave:  An employee who elects to use paid leave with covered FMLA leave must now follow the employer’s policy for that paid leave.   However, the employer must have a written policy with respect to the paid leave issue before it can take any action related to the employee’s failure to follow such policy.

Accordingly, under the new FMLA regulations an employer may require an employee to take a full vacation day under its written vacation policy to the extent all employees are treated consistently, even though the employee wishes to use paid vacation time for two hours of treatment.

            Impact on Hawaii Employers:    HFLL is currently silent on the issue and it is uncertain whether the Hawaii DLIR will adopt the same position as FMLA.  Employers covered by both HFLL should of course use caution in applying the new provision to HFLL leave.   Hawaii employers should note that HFLL expressly permits employees’ use of paid sick leave, up to ten days per year, to the extent paid sick leave is offered as a benefit by the employer. 

            G.  Rights and Responsibilities:  There are significant changes to the substantive content and timing of notices required by FMLA and the new regulations added an entirely new third form called a “Designation Notice.”  Discussion of the content of each of the three notices/forms is beyond the scope of this article.  Nevertheless, it is critical that employers covered by FMLA immediately print the forms from the DOL’s website and incorporate them into their FMLA policies, procedures and employee handbook. 

            Impact on Hawaii Employers:  It is unclear the extent to which DLIR will adopt, either formally or informally, the FMLA forms or form-related regulations regarding the timing and content of notices.  This is an area that will be difficult for Hawaii employers with 100 or more employees to navigate given the current lack of guidance in HFLL regulations.  Unfortunately, there is no indication that DLIR intends to update HFLL regulations in the near future.

            This should be an area of great concern for employers covered by both FMLA and HFLL.  For example, the new FMLA regulations state that an employer may require notice of the need for unforeseeable leave “as soon as practicable.”  HFLL currently requires an employee to give “at least verbal notice to the employer within two working days,” a significant difference which will make it difficult for Hawaii employers with over 100 employees to navigate between the two sets of laws.

            Both FMLA and HFLL permit a covered employer to require certification of the serious health condition at issue.  However, FMLA now requires the employer to provide a Notice of Eligibility and Rights within five business days after receiving notice of the need for protected leave, and a Certification of Health Care Provider. 

Under the new regulations the employee requesting family leave must return the Certification of Health Care Provider (there are now separate forms for the employee and family member) within 15 calendar days after receiving it.  On the other hand, HFLL regulations state that an employee may be required to return a completed certification within two days after commencement of leave. 

            H.  Employee’s Failure to Provide Notice:  One of the more controversial new FMLA provisions states that an employer may now delay or even deny covered leave for an employee’s failure to provide notice consistent with the employer’s written notice rule or procedure.

Under the new FMLA regulations, in theory the employer is permitted to better plan for staffing and operational needs by requiring an employee eligible for protected leave to comply with notice procedures.  Employees will be encouraged to comply with notice requirements knowing that the failure to do so could result in denial of protected leave.

            Impact on Hawaii Employers:    Hawaii law contradicts the new FMLA provision insofar as employers under HFLL are permitted to only “delay” and not deny covered leave for noncompliance.  Thus, Hawaii employers cannot “deny” HFLL leave under these circumstances.

I.  Certification Contents:  Under FMLA, the covered employer has unprecedented rights to obtain medical information related to the leave request.  For example, the employer may now request the diagnosis of the medical condition requiring protected leave.

Impact on Hawaii Employers:  Under HFLL the employer is prohibited from seeking the type of information employers under FMLA are now permitted to obtain.  While the employee seeking protected leave to care for a spouse, for example, arguably waives rights to maintain the medical diagnosis private under the new FMLA regulations, the fact is Hawaii law still limits to a large degree the information the employer is entitled to receive.  Under HFLL, there is no explicit right for the employer to know the diagnosis of the serious health condition of a covered employee’s spouse when such employee requests leave under HFLL.

J.  Incomplete Certification:  Under the new FMLA regulations an employer may deny or delay protected leave where the employee fails to provide a complete certification after the employer gives written notice that the initial certification was incomplete or insufficient.  

            Impact on Hawaii Employers:  As stated previously, under HFLL an employer may only “delay” giving protected leave for an employee’s failure to comply with notice requirements.  In addition, for incomplete and insufficient certifications, an employer must “provide the employee a reasonable opportunity to remedy such deficiency.”

            K.  Bonuses:  The new FMLA regulations allow for the denial of a "perfect attendance" bonus/award to employees who take leave under FMLA.

Impact on Hawaii Employers:  HFLL regulations do not allow this.  Thus, unless and until HFLL regulations are amended or clarified, Hawaii employers covered by both HFLL and FMLA should use caution in denying perfect attendance and other awards to employees who take leave under HFLL.

IV.CONCLUSION

While DLIR regulations state that its regulations and interpretation of law applies where a specific state regulation provides more protection to the employee than federal law, there is still a great deal of uncertainty how FMLA regulations are to be interpreted vis a vis HFLL given the relative dearth of guidance in the DLIR’s own regulations.

Roman Amaguin, Esq.; romanamaguin@yahoo.com; www.amaguinlaw.com