Employment Law

HAWAII EMPLOYMENT LAW UPDATE:  HAWAII EMPLOYERS WISE TO USE CAUTION WHEN INCORPORATING NEW FMLA RULES INTO LEAVE POLICIES

I.BACKGROUND

The federal Loved ones Medical Leave Act (“FMLA”) applies to all private employers who have 50 or much more employees for every single working day of 20 or more (not necessarily consecutive) calendar workweeks in the existing or preceding calendar year.  FMLA calls for covered employers to permit 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 well being condition,” if the employee’s own serious wellness condition makes them unable to perform one or a lot more crucial functions of the job, or for particular qualifying exigencies.  An eligible employee under FMLA has been employed by the employer for 12 months and has worked 1,250 hours in the course of the preceding 12 months.

            Under the Hawaii Family members Leave Law (“HFLL”), employers with more than 100 workers (determined in a manner comparable to FMLA) should comply with both FMLA and HFLL.  Typically, HFLL does not cover eligible employees that take leave for their own serious well being condition, but only leave taken for an employee’s in-laws, grandparents and reciprocal beneficiaries.  HFLL offers only four weeks of leave instead of FMLA’s 12 weeks.  An employee eligible for leave under HFLL require only to have been employed for six months for the covered employer, regardless of the number of hours worked.

II.FMAL REVISIONS ARE EXTENSIVE

            The adjustments to FMLA successful January 16, 2009, were extensive and created to reflect revisions, clarifications, and general reorganization of the regulations. 

Usually, Hawaii employers needed to comply with both FMLA and HFLL need to have to use caution when deciding no matter whether to implement federal law in connection with HFLL.  HFLL regulations make clear that HFLL incorporates federal definitions and interpretation of leave law, unless federal law is much less favorable to the employee.  Some regulations may be adopted by Hawaii employers, simply because they would be viewed as a reasonable interpretation of Hawaii law.   Unfortunately, there are a lot of unresolved issues that will need to have to be addressed by statutory and regulatory amendments.  

III.REVISIONS, CLARIFICATIONS AND IMPACT

            The a lot more substantial FMLA revisions include the following:

A.  Eligibility:  The new FMLA regulations state that the 12 months of employment need not be consecutive, but employers require not count a break-in-service of seven years or a lot more in determining whether or not an employee has been employed for at least 12 months.

Impact on Hawaii Employers:  HFLL regulations explicitly state that the six-month period of employment should be consecutive.  Accordingly, Hawaii employers covered by HFLL are not required to implement the eligibility provision to their HFLL practices.

B.  Incapacitation:  The new regulations state that the employee ought to be incapacitated for much more than 3 full calendar days and show “continuing treatment” by a wellness care provider as defined by FMLA in order to be eligible for leave under the “absence plus treatment” definition of “serious health condition.”  In addition, in order to qualify for leave under the “continuing treatment” definition, the employee should have been treated within the first 30 days of incapacity, must also have observed a wellness care provider within the initial seven days of incapacity, and such “visits” to the well being care provider ought to be in individual.

Impact on Hawaii Employers:  This clarification will in a lot of situations result in uncertainty regardless of whether leave taken by an employee in connection with continuing treatment of a family members member is FMLA-protected leave during the first 30 days of incapacity. 

The Hawaii Department of Industrial Relations (“DLIR”) has expressed its intent to follow FMLA regulations with respect to definitions related to the term “serious well being condition.”  In the absence of clarification of the term “continuing treatment” under HFLL by DLIR, the new FMLA definition will also most likely apply to Hawaii employers required to comply with both FMLA and HFLL.  Also, regardless of advances in the region of telemedicine on-line consultations, under the new FMLA regulations only in-individual visits to wellness care providers constitutes treatment.

            C.  Pregnancy:  The FMLA regulations now clarify that only a spouse may receive FMLA leave to care for a pregnant woman.  Thus, a boyfriend, fiancé or even the father (if not also a spouse of the expectant mother) of the unborn child is not eligible to take such leave.

            Impact on Hawaii Employers:  Hawaii regulations explicitly state that an employee might care “for the employee’s child, spouse or reciprocal beneficiary, or parent with a significant wellness condition.” The provision appears consistent with FMLA’s requirement that the father ought to be the spouse of a pregnant woman in order to qualify for protected leave.  HFLL regulations, nevertheless, do permit loved ones leave to be taken where the unmarried mother and father are “reciprocal beneficiaries.”

            D.  Birth of Child:  The FMLA regulations now clarify that both mother and father may possibly take up to 12 weeks of leave to care for a newborn child with a serious well being condition even if both are employed by the exact same employer.  Nonetheless, they are limited to 12 weeks total for a well being newborn.  Also, intermittent leave is permitted under FMLA only as agreed to by both employee and employer.

            Impact on Hawaii Employers:  HFLL regulations permit intermittent leave under all circumstances and 4 weeks to be taken by both the mother and father.  Given that the FMLA regulations directly contradict Hawaii law and the Hawaii DLIR will interpret HFLL in a manner most favorable to the employee, HFLL will likely continue to permit eligible workers to take intermittent leave under all circumstances.

            E.  Intermittent Leave/Reduced Schedule:  The new regulations state that employees need to make a “reasonable effort” to schedule treatment so as not to disrupt unduly an employer’s operations.  Also, an employer could transfer an employee where leave is foreseeable based on planned medical treatment.

            Impact on Hawaii Employers:  The revision to FMLA is substantial insofar as the “reasonable effort” standard replaced the word “attempt.”  HFLL is silent on the concern.  Consequently, Hawaii employers that are required to comply with HFLL need to approach the problem of an employee scheduling remedies cautiously.  This is 1 of numerous substantial new FMLA regulations that need to have to be addressed by the Hawaii legislature and/or DLIR.

 As to the new transfer provision, the DOL balked at permitting a transfer where leave is “unforeseeable.”  The DOL viewed such transfers as potentially retaliatory.  HFLL permits the employer to only “offer” modification of an employee’s job and duties and only where the employee calls for intermittent leave.  In addition, HFLL explicitly states that an employee should agree to the transfer proposed by the employer.  Lastly, the “alternative transfer or modified position” ought to have “equivalent pay and advantages of the employee’s typical job, even if the employer need to boost the pay and advantages.”

            F.  Substitution of Paid Leave:  An employee who elects to use paid leave with covered FMLA leave should now follow the employer’s policy for that paid leave.   Even so, the employer must have a written policy with respect to the paid leave concern before it can take any action related to the employee’s failure to follow such policy.

Accordingly, under the new FMLA regulations an employer may possibly need an employee to take a full vacation day under its written vacation policy to the extent all workers are treated consistently, even though the employee wishes to use paid vacation time for two hours of treatment.

            Impact on Hawaii Employers:    HFLL is currently silent on the problem and it is uncertain whether the Hawaii DLIR will adopt the same position as FMLA.  Employers covered by both HFLL should of course use caution in applying the new provision to HFLL leave.   Hawaii employers need to note that HFLL expressly permits employees’ use of paid sick leave, up to ten days per year, to the extent paid sick leave is provided as a benefit by the employer. 

            G.  Rights and Responsibilities:  There are significant adjustments to the substantive content material and timing of notices required by FMLA and the new regulations added an entirely new third form known as a “Designation Notice.”  Discussion of the content of every of the 3 notices/forms is beyond the scope of this write-up.  Nevertheless, it is critical that employers covered by FMLA quickly print the forms from the DOL’s website and incorporate them into their FMLA policies, procedures and employee handbook. 

            Impact on Hawaii Employers:  It is unclear the extent to which DLIR will adopt, either formally or informally, the FMLA forms or form-related regulations relating to the timing and content of notices.  This is an area that will be tough for Hawaii employers with 100 or far more employees to navigate given the current lack of guidance in HFLL regulations.  Sadly, there is no indication that DLIR intends to update HFLL regulations in the near future.

            This ought to be an area of fantastic concern for employers covered by both FMLA and HFLL.  For example, the new FMLA regulations state that an employer may possibly call for notice of the need to have for unforeseeable leave “as soon as practicable.”  HFLL currently requires an employee to give “at least verbal notice to the employer inside two working days,” a significant difference which will make it difficult for Hawaii employers with over 100 workers to navigate between the two sets of laws.

            Both FMLA and HFLL permit a covered employer to demand certification of the serious health condition at concern.  However, FMLA now calls for the employer to provide a Notice of Eligibility and Rights within five enterprise days after receiving notice of the need to have for protected leave, and a Certification of Wellness Care Provider. 

Under the new regulations the employee requesting loved ones leave need to return the Certification of Wellness Care Provider (there are now separate forms for the employee and family members member) within 15 calendar days right after receiving it.  On the other hand, HFLL regulations state that an employee may be needed to return a completed certification within two days soon after commencement of leave. 

            H.  Employee’s Failure to Offer Notice:  1 of the much more controversial new FMLA provisions states that an employer might now delay or even deny covered leave for an employee’s failure to present notice consistent with the employer’s written notice rule or procedure.

Under the new FMLA regulations, in theory the employer is permitted to greater program for staffing and operational requirements by requiring an employee eligible for protected leave to comply with notice procedures.  Workers will be encouraged to comply with notice requirements realizing that the failure to do so could result in denial of protected leave.

            Impact on 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.

I.  Certification Contents:  Under FMLA, the covered employer has unprecedented rights to obtain medical info related to the leave request.  For example, the employer may now request the diagnosis of the medical condition requiring protected leave.

Impact on Hawaii Employers:  Under HFLL the employer is prohibited from searching for the kind of info employers under FMLA are now permitted to acquire.  Whilst the employee seeking protected leave to care for a spouse, for example, arguably waives rights to maintain the medical diagnosis private under the new FMLA regulations, the reality is Hawaii law still limits to a big degree the data the employer is entitled to obtain.  Under HFLL, there is no explicit right for the employer to know the diagnosis of the significant health condition of a covered employee’s spouse when such employee requests leave under HFLL.

J.  Incomplete Certification:  Under the new FMLA regulations an employer may possibly deny or delay protected leave where the employee fails to supply a total certification following the employer provides written notice that the initial certification was incomplete or insufficient.  

            Impact on Hawaii Employers:  As stated previously, under HFLL an employer may only “delay” giving protected leave for an employee’s failure to comply with notice requirements.  In addition, for incomplete and insufficient certifications, an employer need to “provide the employee a reasonable chance to remedy such deficiency.”

            K.  Bonuses:  The new FMLA regulations permit for the denial of a “perfect attendance” bonus/award to employees who take leave under FMLA.

Impact on Hawaii Employers:  HFLL regulations do not enable this.  Therefore, unless and until HFLL regulations are amended or clarified, Hawaii employers covered by both HFLL and FMLA need to use caution in denying perfect attendance and other awards to employees who take leave under HFLL.

IV.CONCLUSION

Although DLIR regulations state that its regulations and interpretation of law applies where a particular state regulation supplies much more protection to the employee than federal law, there is still a excellent deal of uncertainty how FMLA regulations are to be interpreted vis a vis HFLL given the relative dearth of guidance in the DLIR’s own regulations.

Roman Amaguin, Esq. romanamaguin@yahoo.com www.amaguinlaw.com