Hawaii Employers Limited in Requiring Notice Under FMLA

The Hawaii Family Leave Law (“HFLL”) regulations make clear that HFLL incorporates federal definitions and interpretation of leave law under the Family Medical Leave Act (“FMLA”), unless federal law is less favorable to the employee.Generally, 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 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.Hawaii employers covered by both federal and state law must understand the differences in the two sets of laws, including the position taken by the federal DOL that, “where an employer’s usual and customary notice and procedural requirements for requesting leave are consistent with what is practicable given the particular circumstances of the employee’s need for leave, the employer’s notice requirements can be enforced.” In addition, the current position of the Deparment is that the “flat two-day rule” under the previous regulations has been rescinded.Thus, the determination of the adequacy of an employee’s notice is driven by the individual facts and circumstances, rather than an arbitrary two-day timeframe. The regulation itself also recognizes employers’ ability to enforce reasonable call-in policies. “Where an employee does not comply with the employer’s usual notice and procedural requirements, and no unusual circumstances justify the failure to comply, FMLA-protected leave may be delayed or denied” so long as the employer does not delay or deny leave where the employee provides timely notice as set by the regulation.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.The FMLA regulations still leave questions for 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, which makes the administration of the two sets of laws potentially problematic for them.