A new law passed by the Hawaii State Legislature allows workers to use their own sick leave days to care for their seriously ill child or other family member. The law took effect on July 1, 2003, and applies to all employers with 100 or more employees.
The law improves upon the existing Hawaii Family Leave Act, passed in 1991, by allowing employees to use up to 10 days of
their current or accrued sick leave days for qualified family leave purposes. Previously, most employers only allow workers to
take sick leave for their own illness or disability and time taken off work for family leave was unpaid. The new law will require employers to change this practice.
The legislature felt that requiring workers to take leave without pay “creates an economic hardship for employees who cannot
afford to take unpaid family leave to care for sick family members.” The law passed by the legislature tries to balance the needs of the workplace with that of the family.
The ILWU and other unions strongly supported this improvement. Business groups like the Chamber of Commerce of Hawaii,
the Hawaii Business League, and the Retail Merchants of Hawaii opposed the law. Governor Lingle allowed the bill to pass without her signature, but had her Department of Labor and Industrial Relations testify in opposition to the bill. Most of the Republicans in the House (Bukoski, Jernigan, Meyer, Ontai ) and Senate (Hemmings, Hogue, Slom, Trimble, Whalen) voted against the bill.
ILWU members benefit
ILWU members can benefit under this law, as it also applies to workers with a union contract. If there is a conflict between the law and the union contract, then whichever gives the greater benefit will be applied. This means ILWU members who work for companies with 100 or more employees would be able to use up to 10 days of their paid sick leave for family leave purposes even if the contract language or company rules and policies say that sick leave is limited to the employee’s own illness. The law also appears to allow workers to use paid sick leave starting from the first day of absence for family leave even if the contract has a waiting period or one or two days.
Unions are also free to negotiate better benefits then what the law requires. For example, a union may negotiate the use of
more than 10 days of sick leave per year.
Workers can also take advantage of the federal Family Medical Leave Act which applies to companies with as little as 50 employees and provides up to 12 weeks of unpaid leave each year. To be covered under the federal law, you must have worked at least 1250 hours in the previous 12 months and have at least one-year seniority with the company. The federal law, however, does not require employers to allow the use of sick leave for family members if their policies do not already provide for this benefit.
Birth of child
An ILWU member at an auto company recently took 5 days vacation after the birth of a child. The company has more than 100 employees, and so is covered under both the Hawaii and Federal law. Both laws allow the use of family leave any time
during the 12 month period following the birth of a child. Under the Hawaii law, the member can take another 5 days (up
to 10 days) and use sick leave instead of vacation days. If the employer agrees, the member can use vacation or sick leave days beyond the 10 days required by state law.
If the member did not give notice that the first 5-day vacation was for family leave, it may be too late to have it converted to
sick leave or count as family leave, unless the employer agrees. There is a requirement that workers give prior notice that they are taking family leave or no later than two business days after returning to work. However, it doesn’t hurt to ask. Many provisions of the state and federal family leave law leave room for negotiations and mutual agreements. This is where members should get help from their union.
Discrimination prohibited
Some employers have no-fault absentee policies where workers are automatically disciplined for absences, including legitimate sick leave use. Such a policy may give a written warning after 6 absences, an automatic suspension on the 7th absence, and discharge on the 8th absence. Both the Hawaii and federal law prohibit employers from counting family leave in such no-fault policy. Both laws prohibitany loss of employment benefits or discrimination against workers who exercise their right to family leave, which would include counting family leave as an absence in a no-fault policy. The biggest problem in this area is that members forget or fail to tell their employer they are taking family leave. It is only days later, when the ember is disciplined or when they finally get around to talking to a union steward, do they remember they are entitled to family leave. By then it is too late—the federal law requires you to notify your employer no later than two business days after returning to work.
Notice is required
Workers have the responsibility to notify their employer as much as 30 days in advance that they are taking family leave and
employers may require the worker to have written certification or proof, which would usually be from a doctor or health care
provider.
In some cases, advance notice is not possible. The flu or common cold can become a serious health condition if it incapacitates you for three or more calendar (not working days) and involves two or more treatments by your doctor. In this case, you should have your doctor certify the illness as a serious health condition, and you should notify your employer while you are on leave or no later than two days after returning to work.
One or two day absences due to a severe asthma, migraine, or arthritis attack and absences for the treatment of these conditions are also covered under family leave, because these are chronic serious health conditions. Again, you should consult with your doctor or health care provider who will need to certify that the condition is covered under the family medical leave law.
What you need to know about family leave
Legislature acts to help working families
Committee reports are a good source of information for the reasoning behind legislation passed by the State Legislature. The following excerpt is from the Senate Ways and Means Committee, chaired by Senator Brian Taniguchi:
Your Committee finds that the state family leave law does not require an employer to allow an employee to utilize sick leave to attend to the employee’s child, parent, spouse, or reciprocal beneficiary with a serious health condition. This prohibition creates an economic hardship for employees who cannot afford to take unpaid family leave to care for sick family members.
Chart 1: FMLA Serious Health Condition Definition
Understanding what is a serious health condition will help you get the most out of the family medical leave laws. The following table is based on the U.S. Family and Medical Leave Act (FMLA) of 1993. For more information, go to the U.S. Department of Labor website—http://www.dol.gov/esa/whd/fmla/index.htm
Women comprised nearly sixty percent* of Hawaii’s workforce in 2000 and Hawaii has a very high rate of two-
wage earner families. As a result, there often is no one at home to care for sick children, spouses, or aging parents. The high cost of living in Hawaii results in difficult choices for employees with a seriously ill family member. In addition to the state family leave law’s current job protection, this measure will provide added assistance in helping employees balance workplace and family responsibilities, by allowing an employee to use
paid sick leave to provide care for ill family members. [*Actually, women comprise 48 percent of the workforce,
but 60 percent of women are in the workforce.]
House Labor Committee
Some of these reports review who testifies for and against the legislation and give some history on the legislation. The following excerpt is from the House Labor Committee, chaired by Representative Marcus Oshiro:
The Hawaii State AFL-CIO, ILWU Local 142, and concerned citizens testified in support of this measure. The
Department of Labor and Industrial Relations, the Chamber of Commerce of Hawaii, the Hawaii Business League, the Hawaii Bankers Association, the Society of Human Resource Management, and the Retail Merchants of Hawaii testified in opposition to this measure.
Hawaii has long been viewed as a leader in the establishment of progressive social policy in the United States.
One such law that has demonstrated Hawaii’s leadership is Act 328, Session Laws of Hawaii 1991, the Hawaii
Family Leave Act (HFLA), which was later codified as Chapter 398, Hawaii Revised Statutes (HRS).
Under this law, employers who employ more than one hundred or more employees for each working day during
each of twenty or more calendar weeks in the current or preceding calendar year must provide up to four weeks of family leave during any calendar year upon the birth or adoption of a child, or to care for the employee’s reciprocal beneficiary, child, spouse, or parent with a serious health condition.
HFLA served as the model for the federal Family and Medical Leave Act of 1993 (FMLA) — the first national policy aimed at helping working individuals meet both work and family obligations by balancing the demands of the workplace with the needs of families to promote the stability and economic security of families as well as the
national interests in preserving family integrity.
Since the enactment of FMLA ten years ago, the complexity of family obligations for working families has
grown considerably in terms of intricacy, intensity, and scope. For example, Hawaii’s population is growing older,
necessitating greater demands for long-term care and health insurance. The larger segment of Hawaii’s workforce is female, the member of the family unit primarily responsible for child care and other everyday tasks for many of Hawaii’s families. These trends have been found in most every state throughout our nation.
Subsequently, lawmakers across the United States have looked toward the enactment of state family leave laws to further ensure that the needs of the workplace and those of families are balanced. Over the past two years, 22
states have introduced legislation to either establish state family leave laws, or to amend these laws.
You can find the committee reports and information on legislation at http://www.capitol.hawaii.gov/. Click on “Bill Status and Docs” which brings you to a page where you can look up the bills passed by the legislature. Enter HB389 to look up the bill on family leave.
Chart 2: Family Care Leave Definitions
The following table is based on the U.S. Family and Medical Leave Act (FMLA) of 1993. The Hawaii Family Leave Law includes family members not included in the federal law—such as parents and grandparent-in-laws, grandparents, and reciprocal beneficiaries.
