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Wage and Hour Division
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Wage and Hour Division (WHD)

Federal vs. Hawaii Family and Medical Leave Laws



Employer Covered

Private Employers of 50 or more Employees in at least 20 weeks of the current or preceding year

Public agencies, including state, local, and Federal Employers

Local education agencies covered under special provisions

Until 7/01/02, all business entities (including the State, its political subdivisions, and its instrumentalities) with 100 or more Employees for each working day during each of 20 or more calendar weeks of the current or preceding calendar year (After 7/01/02, employees of the State, its political subdivisions, and its instrumentalities were no longer included under the protections provided by the state statute, but they remain protected under the provisions of the Federal statute)

No special provision for education agencies


Employees Eligible

Worked for Employer for at least 12 months - which need not be consecutive; worked at least 1,250 hours for Employer during 12 months preceding leave; and employed at Employer worksite with 50 or more Employees or within 75 miles of Employer worksites with a total of 50 or more Employees

Employees who have worked for 6 consecutive months

No worksite proviso

Leave Amount

Up to a total of 12 weeks during a 12-month period; however, leave for birth, adoption, foster care, or to care for a parent with a serious health condition must be shared by spouses working for same Employer

Up to 4 weeks during any calendar year

No provision requiring spouses to share leave

Type of Leave

Unpaid leave for birth, placement of child for adoption or foster care, to provide care for Employee's own parent (including individuals who exercise parental responsibility under state law), child, or spouse with serious health condition, or Employee's own serious health condition

Similar to Federal provision (except statute does not apply to employee's own health condition or foster care); it additionally includes leave to care for an employee's parent-in-law and grandparent or grandparent-in-law and an employee's reciprocal beneficiary.

Serious Health Condition

Illness, injury, impairment, or physical or mental condition involving incapacity or treatment connected with inpatient care in hospital, hospice, or residential medical-care facility; or, continuing treatment by a health care provider involving a period of incapacity: (1) requiring absence of more than 3 consecutive calendar days from work, school, or other activities; (2) due to a chronic or long-term condition for which treatment may be ineffective; (3) absences to receive multiple treatments (including recovery periods) for a condition that if left untreated likely would result in incapacity of more than 3 days; or (4) due to any incapacity related to pregnancy or for prenatal care

Similar to Federal provision


Health Care Provider

Doctors of medicine or osteopathy authorized to practice medicine or surgery; podiatrists, dentists, clinical psychologists, clinical social workers, optometrists, chiropractors (limited to manual manipulation of spine to correct subluxation shown to exist by x-ray), nurse practitioners, and nurse-midwives, if authorized to practice under State law and consistent with the scope of their authorization; Christian Science practitioners listed with the First Church of Christ, Scientist in Boston, MA; any provider so recognized by the Employer or its group health plan's benefits manager; and any health provider listed above who practices and is authorized to practice in a country other than the United States

Person qualified by the Director of Labor and Industrial Relations to render health care and service and who has a license to the practice of medicine, dentistry, chiropractic, osteopathy, naturopathy, optometry, podiatry

Intermittent Leave

Permitted for serious health condition when medically necessary. Not permitted for care of newborn or new placement by adoption or foster care unless Employer agrees

Permitted for birth, adoption placement, and serious health condition of family member

Substitution of Paid Leave

Employees may elect or Employers may require accrued paid leave to be substituted in some cases. No limits on substituting paid vacation or personal leave. An Employee may not substitute paid sick, medical, of family leave for any situation not covered by any Employers' leave plan

Employer or Employee may elect to substitute Employee accrued paid leave provided sick leave may not be substituted unless such leave is normally granted for such family leave purposes, or upon mutual agreement by Employer and Employee

Reinstatement Rights

Must be restored to same position or one equivalent to it in all benefits and other terms and conditions of employment

Similar to Federal provision

Key Employee Exception

Limited exception for salaried Employees if among highest paid 10%, within 75 miles of worksites, restoration would lead to grievous economic harm to Employer, and other conditions met

No similar provision

Maintenance of Health Benefits During Leave

Health insurance must be continued under same conditions as prior to leave

No specific provision

Leave Requests

To be made by Employee at least 30 days prior to date leave is to begin where need is known in advance or, where not foreseeable, as soon as practicable.

If due to a planned medical treatment or for intermittent leave, the Employee, subject to health care provider's approval, shall make a reasonable effort to schedule it in a way that does not unduly disrupt Employer's operation

If foreseeable, to be made by Employee in a manner that is practical and reasonable

No similar provision relating to scheduling of medical treatment

Medical Certification May Be Required by Employer for:

Request for leave because of serious health condition

To demonstrate Employee's fitness to return to work from medical leave where Employer has a uniformly applied practice or policy to require such certification

Request for leave because of serious health condition; other means of certification for birth or adoption placement

No similar provision

Executive, Administrative, and Professional Employees

Such individuals are entitled to FMLA benefits. However, their use of FMLA leave does not change their status under the Fair Labor Standards Act (FLSA), i.e., an Employer, does not lose its exemption from the FLSA's minimum wage and overtime requirements.

No similar provision