Hawaii Employers Limited in Requiring Notice Under FMLA

The Hawaii Family Leave Law (“HFLL”) regulations clarify that HFLL incorporates federal definitions as well as interpretation of the leave law in the Family Medical Leave Act (“FMLA”) if federal law is more favouring the employee.
In general, FMLA is available to private companies that employ 50 or more workers daily with twenty or more (not always consecutive) calendar workweeks during the calendar year preceding or following the current year. FMLA obliges covered employers to permit employees who are eligible to take up 12 weeks of unpaid time off to celebrate children’s birth, adoption, or other reasons to provide care to parents, children, or spouses suffering from a “serious health problem,” if the employee’s health issue renders them incapable of performing certain essential tasks of their job or in the case of certain contingencies that qualify. An employee eligible under FMLA is employed by their employer for 12 months and worked for 1,250 hours in the previous 12 months.
Under HFLL, employers with over 100 workers (determined by a method similar to FMLA) are required to comply with each FMLA and HFLL. Most of the time, HFLL does not cover eligible employees on leave due to a medical conditions. The only exception is an employee’s spouse, grandparents, reciprocal beneficiaries and in-laws. HFLL gives just four weeks off instead of the FMLA’s 12 weeks. A person entitled to leave under HFLL must be employed for six months by the employer who is covered regardless of the number of hours they have worked.
Hawaii employers covered by state and federal law should be aware of the distinctions between the two sets of laws. This includes the position of the Federal DOL that “where an employer’s normal and customary notice as well as the procedural guidelines for requesting leave is following the reasonable requirements in the specific circumstances surrounding the employee’s request for leave and the requirements for notice of leave are following the law, they are enforceable.” Furthermore it is currently the policy of the department states in the direction that “flat two-day rule” in the old regulations has been removed.
Therefore, the appropriateness of a notice given to an employee is determined by the individual circumstances and facts instead of an unconstrained two-day deadline. The regulation recognizes employers’ power in enforcing reasonable calling-in rules. “Where employees fail to follow the normal procedures and notice requirements, and there is no reason that would justify the noncompliance FMLA-protected time off may be denied or delayed” if the employer is not able to delay or deny leave if the employee gives timely notice, as required by the regulations.
In theory, the employer can better manage staffing and operational requirements by requiring employees who are protected leave rights to adhere to notice procedures. Employees are encouraged to follow the notification requirements in the knowledge that inability to comply could result in the denial of protected leave.
The FMLA regulations remain a source of confusion regarding Hawaii employers. Hawaii law contradicts the newly enacted FMLA provision in those employers covered under HFLL are allowed to “delay” but not deny the covered leave in case of noncompliance. This means that Hawaii employers cannot “deny” HFLL leave under this circumstance, making the administration of both laws potentially problematic for them.

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