Human Resource Blog

The Hawaii Family Medical Leave Law

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Is it true that a

Hawaii employer has to give a gay employee time off to care for his or her seriously-ill partner? How does the Hawaii FMLA law differ from the federal law?

The Hawaii Family Medical Leave Law (FMLL) allows eligible employees to take up to 4 weeks of job-protected leave to care for a reciprocal beneficiary who is unrelated to the employee. In many cases this includes the partner of a gay employee, as long as each has named the other as their beneficiary. This law also applies to heterosexual employees who want to take time off to care for an unrelated reciprocal beneficiary.

There are several differences in the state and federal laws. In general, the Hawaii FMLL covers some situations that are not covered under the federal law. However, it does not allow for leave when a worker is sick. In addition, the state law provides only 4 weeks of job-protected leave (for eligible employees) while the federal law provides up to 12 weeks of unpaid leave.

Hawaii is one of 11 U.S. states with a Family and Medical Leave Law that provides greater benefits than the federal FMLA (or Family and Medical Leave Act).  As with all U.S. labor laws, when an employee is covered by both a federal and a state law, the employee is entitled to protection under whichever law provides the greater benefit. Under this system, an employee might be entitled to take up to 4 weeks of leave under the state law to care for a grandparent who is seriously ill. However, the same employee would be entitled to take up to 12 weeks of unpaid leave to care for a seriously ill child, under the federal law.

The Hawaii FML law covers most employers with 100 or more employees. The state law does not cover employees who work for the state of Hawaii.

Hawaii employers with at least 50 employees but fewer than 100 workers, are covered under the federal law. Local education agencies with fewer than 100 employees are covered under the federal FMLA.

The Hawaii law covers employees who have worked for an employer for 6 consecutive months. Under this law, employees may take up to 4 weeks of leave in any calendar year. The state law allows employees to take time off for the birth of a child, or adoption of a child. It also allows employees to take time off to care for a parent, child or spouse with a serious illness. In addition, the state law allows employees to take time off to care for a mother-in-law or father-in-law, a grandparent, or a grandparent-in-law.

Act 44 of the Hawaii FMLL allows employees to use any paid sick leave when taking time off under the law, even if the employee is not sick.

It’s important to note that while the federal law allows employees to take time off for their own illness, the Hawaii law does not.  For their own illness, employees in Hawaii fall under the federal FMLA law.

There is another important distinction between the federal and state laws. Under the Hawaii FML law, if both parents work for the same employer, each is entitled to up to 4 weeks of unpaid leave for the birth or adoption of a child, or the care of a seriously ill parent. Under the federal law, parents who both work for the same employer must split this leave, making them eligible for a total of 12 weeks leave. Under the Hawaii law, the two parents combined are eligible for a total of 8 weeks of leave (4 weeks each.)

When both parents work for the same company, the federal law requires that any leave for birth, adoption or care of a parent be the unpaid leave between the two. So, for example, the mother may take 12 weeks of unpaid leave, or the father may take 12 weeks of unpaid leave. Or, they may each take 6 weeks of unpaid leave. But, under the federal law, the mother and father cannot each take 12 weeks of unpaid leave if they work for the same employer. Under the Hawaii law, each parent is entitled to 4 weeks of leave, even if they work for the same employer.