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In addition to protections under the federal Family Medical and Leave Act, The State of Hawaii has passed several laws providing various forms of leave for both private and public employees. The other sections of this article contain a brief summary of these two laws.

If you are considering taking leave, consult with your Human Resource Office for additional details - preferably with a supervisor to assure that the advice is accurate.

For more information, see:

Hawaii's Family Leave Law

Who Is Eligible?

The law applies to both private and public employees. In some ways the Hawaiian Family Leave Law is more generous than the federal FMLA. That is, to be eligible under the Hawaiian law you must have worked for your employer for only six consecutive months. However, the Hawaiian law is less generous in that it applies only to employers who employ at least 100 employees.

What Leave Am I Entitled To?

If you have been employed for six consecutive months you are entitled to a total of four weeks of family leave during any calendar year. Although this is significantly less leave than is provided under the federal FMLA, it benefits employees who have not worked for their employer for twelve months and 1,250 hours.

What Are Legitimate Reasons for Leave?

You may take leave:

  1. Upon the birth or adoption of your child;
  2. To care for your child, spouse or reciprocal beneficiary, or a parent with a serious health condition.

"Child" means a biological, adopted or foster son or daughter, or a stepchild, or a legal ward of the employee.

"Parent" means a biological, foster, or adoptive parent, a parent-in-law, a stepparent, a legal guardian, a grandparent, or a grandparent-in-law.

Will I Be Paid During My Leave?

The program is an unpaid leave program. However, either you or your employer may elect to apply any of your accrued paid leave (e.g. vacation or personal) to any part of the four week leave period.

What Notice Am I Required to Provide?

In any case where your need for family leave is foreseeable, you must provide prior notice that is reasonable and practicable.

What Certification is Required?

Your employer can require that your request for family leave be supported by written certification.

  1. If leave is due to the birth or a child, the certification must come from a health care provider or the family court.
  2. If leave is due to the adoption of a child, the certification must come from a recognized adoption agency, the attorney handling the adoption, or the person officially designated by the birth parent to select and approve the adoptive family.

If leave is to care for a child, spouse or parent, the certification must come from that family member's health care provider.

Will My Job Be Protected?

You are entitled to be returned to the position you held when you went on leave or to an equivalent position. An equivalent position is one with equivalent benefits, pay, and other terms and conditions of employment.

Exception: If, while you are on leave, your employer experiences a workforce reduction (that is, makes layoffs) and you would have lost your position had you not been on leave, then you are not entitled to be returned to your former position.

Additional Leave Options for Public Employees

What Leave is Available to Public Employees?

In addition to federal FMLA leave and Hawaii Family Leave, public employees in Hawaii may be entitled to: (1) Donor Leave or (2) Leave Sharing.

What Is Donor Leave?

Any officer or employee of the State or the counties is entitled to:

  1. Seven days of paid leave each calendar year to serve as a bone marrow donor, and
  2. Thirty days of paid leave each calendar year to serve as an organ donor.

What Are Leave Sharing Programs?

Certain public employers are permitted to set up leave sharing programs for their employees. It is a good idea to check whether your employer has such a program.

Under a Leave Share program, employees may donate accumulated vacation leave (or for those who are not entitled to vacation leave, accumulated sick leave) to another employee who has a serious personal illness or injury or who has a family member who has a serious personal illness or injury.

Who Is Eligible for Leave Sharing Programs?

In order to be eligible for any Leave Share program there are certain minimum requirements:

  1. You must have at least six months of service within the jurisdiction; ["Jurisdiction" means service for the State, the city and county of Honolulu, the county of Hawaii, the county of Maui, the county of Kauai, the judiciary, the department of education, the University of Hawaii, or the Hawaii health systems corporation.]
  2. You must have used up (or you are about to use up) all of your accrued vacation, sick or compensatory time; [Exception: If you need time off because of a family member's illness or injury then it is not required that you use up your sick leave.]
  3. You must receive certification by a competent medical examiner attesting to the seriousness of the illness or injury and the cause of your inability to work; and
  4. You must not have a record of sick leave abuse within the past two years.

Researched and written by:

Lisa Gerson, Esq. McDermott Will & Emery LLP New York, NY