Hawaii — Leave Laws

The Hawaii Family Leave Law (HFLL), codified in Chapter 398 of the Hawaii Revised Statutes, imposes a two-part employer-coverage test. An entity qualifies as an "Employer" subject to HFLL only if it employs one hundred or more employees for each working day during each of twenty or more calendar weeks in either the current or the preceding calendar year. Both prongs must be satisfied.

Employee-count prong

The employer must have at least 100 employees on each working day during the relevant weeks. An employer who employs 100 employees on some working days but fewer on other days within a given week fails this prong for that week, even if the weekly average meets or exceeds 100.

Durational prong

The 100-employee threshold must be met during at least 20 calendar weeks (not necessarily consecutive) within the current calendar year or the preceding calendar year. An employer with 100 or more employees for each working day during only 10 weeks in a year does not meet the statutory definition of "Employer" under HFLL, regardless of how far above 100 employees the headcount climbs during those 10 weeks. The 20-week requirement is material: it excludes employers with large but short-lived workforces (for example, a seasonal agribusiness that employs 200 workers for 12 weeks every summer) from HFLL coverage.

Consequence of exclusion

Employers who do not satisfy both prongs are expressly excluded from HFLL coverage under Haw. Rev. Stat. § 398-2, which provides that the rights conferred by Chapter 398 "shall not apply to employees of an employer with fewer than one hundred employees." Such employers have no obligation to provide the four weeks of unpaid, job-protected family leave that HFLL otherwise mandates, and their employees cannot invoke HFLL's reinstatement or anti-retaliation protections.

Source: Haw. Rev. Stat. § 398-1 Source: Haw. Rev. Stat. § 398-2

An employee who has worked for the employer for at least six consecutive months is entitled to four weeks of family leave during any calendar year under the Hawaii Family Leave Law. Qualifying reasons include the birth or adoption of a child, or to care for the employee's child, spouse, reciprocal beneficiary, sibling, grandchild, parent, or parent-in-law with a serious health condition. The leave may be taken intermittently and does not carry over to the next calendar year.

Source: Haw. Rev. Stat. § 398-3

Hawaii operates one of the nation's oldest mandatory temporary disability insurance (TDI) programs, enacted in 1969 and codified in Chapter 392 of the Hawaii Revised Statutes. The TDI law requires nearly all Hawaii employers to provide partial wage replacement to employees who become unable to work due to non-work-related illness, injury, pregnancy, termination of pregnancy, or organ donation. Unlike workers' compensation (which covers work-related injuries), TDI covers disabilities that do not arise out of or in the course of employment.

Coverage and employer obligations

Every employer in Hawaii must provide TDI coverage for eligible employees, with limited exceptions. Excluded categories include federal government employees, certain domestic workers, insurance agents and real estate salespersons paid solely on commission, individuals under 18 delivering newspapers, certain family employees, student nurses, and hospital interns who have completed four years of medical school. Employers may provide coverage through one of several methods: purchasing an insured plan from an authorized TDI carrier; depositing securities or a surety bond with the state; maintaining a self-insured plan approved by the Disability Compensation Division; or a collective bargaining agreement containing sick leave benefits at least as favorable as the statutory TDI requirements.

Employee eligibility

To be eligible for TDI benefits, an employee must have at least 14 weeks of Hawaii employment during each of which the employee worked 20 or more hours and earned at least $400 in the 52 weeks preceding the first day of disability. The 14 weeks need not be consecutive nor with a single employer. The employee must also be "in current employment," meaning the individual performed regular service immediately or not longer than two weeks prior to the onset of disability and would have continued or resumed employment except for the disability.

Statutory benefit amounts and duration

Under the statutory TDI plan, benefits are paid at 58% of the employee's average weekly wage. For 2026, the maximum weekly benefit is $871, increased from $837 in 2025. The Hawaii Department of Labor and Industrial Relations Disability Compensation Division announces the maximum benefit amount annually. Benefits are payable for a maximum of 26 weeks for any period of disability or during any benefit year. The statutory plan imposes a waiting period: benefits begin on the eighth day of disability. Employers with approved self-insured plans may provide more generous benefits (shorter waiting periods, higher wage-replacement rates, or longer duration) than the statutory minimum.

Cost-sharing

Employers may pay the entire premium cost or share the cost with employees. If the employer elects cost-sharing, the employer may deduct and withhold up to one-half of the premium cost from eligible employees, but the employee's contribution may not exceed 0.5% of the employee's weekly wages and may not exceed the statutory weekly maximum. For 2026, the maximum employee contribution is $7.50 per week (increased from $7.21 in 2025). The maximum weekly wage base for contributions in 2026 is $1,500.21.

Relationship to HFLL

TDI provides wage replacement, not job protection. Employees at employers with 100 or more employees may also be entitled to job-protected family leave under the Hawaii Family Leave Law (Chapter 398), but HFLL does not provide wage replacement on its own. An employer who provides sick leave must permit an employee to use up to 10 days of accrued sick leave per year for family leave purposes under HFLL; TDI benefits, by contrast, can only be used for the employee's own disability, not to care for a family member.

Source: Haw. Rev. Stat. § 392-21 Source: Haw. Rev. Stat. § 392-23 Source: Haw. Rev. Stat. § 392-25 Source: Hawaii DLIR, About Temporary Disability Insurance Source: Hawaii DLIR, 2026 Maximum Weekly Wage Base

An employee returning from Hawaii Family Leave Law (HFLL) leave is entitled to be restored by the employer to the position of employment held when the leave commenced, or to an equivalent position with equivalent employment benefits, pay, and other terms and conditions of employment. This restoration right is codified in Haw. Rev. Stat. § 398-7(a). The statute specifies three dimensions of equivalence: employment benefits, pay, and other terms and conditions of employment.

Layoff exception

The reinstatement obligation does not apply if, during the leave, the employer experiences a layoff or workforce reduction and the employee would have lost the position had the employee not been on family leave. Haw. Rev. Stat. § 398-7(a). The exception turns on a counterfactual: the employee is not entitled to reinstatement in the former or equivalent position if that position would have been eliminated even had the employee remained actively at work. In such circumstances, however, the employee retains all rights—including seniority rights—pursuant to the good-faith operation of a bona fide layoff and recall system. The statute expressly preserves these procedural rights even when reinstatement itself is unavailable.

Employment benefits accrued before leave

Haw. Rev. Stat. § 398-7(b) provides that the taking of family leave "shall not result in the loss of any employment benefit accrued before the date on which the leave commenced," with one exception: any paid leave that the employee expended in conjunction with the family leave. The statute defines "employment benefits" broadly in Haw. Rev. Stat. § 398-1 to mean "all benefits (other than salary or wages) provided or made available to employees by an employer," including group life insurance, accident and health or sickness insurance, sick leave, annual leave, educational benefits, and pensions. An employee who had accrued vacation, sick leave, or pension vesting credits as of the leave start date retains those accruals upon return, unless the employer permitted (and the employee elected) substitution of accrued paid leave for unpaid HFLL leave under Haw. Rev. Stat. § 398-4.

No entitlement to accrual during leave

HFLL does not require employers to provide the accrual of seniority or employment benefits during the period of leave itself. Haw. Rev. Stat. § 398-7(c) states that nothing in Chapter 398 "shall be construed to entitle or deny any employee to the accrual of any seniority or employment benefits during any period of leave, or any right, employment benefit, or position to which the employee would have been entitled had the employee not taken the leave." The statute leaves the question of benefit accrual during unpaid HFLL leave to the employer's policy or collective bargaining agreement. An employer may decline to credit service time, vacation accrual, or pension vesting during unpaid family leave, so long as the policy is applied consistently to employees on other forms of unpaid leave.

Relationship to other leave laws

Haw. Rev. Stat. § 398-10(a) expressly provides that HFLL "shall set a minimum standard that is not intended to replace family leave policies that exist as of the effective date of this Act and that provide for equal or greater employment benefits than those benefits afforded under this chapter." Similarly, Haw. Rev. Stat. § 398-10(b) states that nothing in Chapter 398 "shall be construed to modify, eliminate, or otherwise abrogate any existing family leave policies, employment benefits, or protections that employees may have pursuant to any employment contracts or collective bargaining agreements, to the extent that the contracts and agreements provide greater protections than those afforded under this chapter." Where contract or collectively bargained leave policies provide greater job-restoration or benefits-protection rights than § 398-7, those greater rights control.

Source: Haw. Rev. Stat. § 398-7 Source: Haw. Rev. Stat. § 398-1 Source: Haw. Rev. Stat. § 398-10

Under Haw. Rev. Stat. § 398-4(c), an employer who provides sick leave for employees must permit an employee to use the employee's accrued and available sick leave for HFLL family leave purposes, subject to two statutory constraints: a 10-day annual cap and the TDI carve-out.

The 10-day annual cap

An employee may not use more than ten days of sick leave per calendar year for HFLL family leave purposes, unless an express provision of a valid collective bargaining agreement authorizes the use of more than ten days. Haw. Rev. Stat. § 398-4(c). The ten-day limit is measured per calendar year, not per leave episode. An employee who uses six days of sick leave for family leave in March and later needs to care for a parent with a serious health condition in October may use only four additional days of sick leave for that second family leave event within the same calendar year, even if the employee has substantially more accrued sick leave.

The collective-bargaining exception is narrow. It requires an "express provision" authorizing more than ten days. Haw. Rev. Stat. § 398-4(c). A general provision stating that employees may use accrued paid leave for family leave purposes, without specifying a number, does not satisfy the express-provision requirement. If a collective bargaining agreement is silent on the number of sick leave days that may be used for family leave, the statutory ten-day cap applies.

The TDI carve-out — sick leave reserved for TDI equivalency cannot be used for family leave

Hawaii operates a mandatory Temporary Disability Insurance (TDI) program under Chapter 392, which requires employers to provide partial wage replacement to employees who are unable to work due to their own non-work-related disability. Employers may satisfy their TDI obligation through an approved self-insured sick leave plan. When an employer's sick leave plan serves as the equivalent of a TDI plan, Haw. Rev. Stat. § 398-4(c) provides that "nothing in this section shall require an employer to diminish an employee's accrued and available sick leave below the amount required pursuant to section 392-41; provided that any sick leave in excess of the minimum statutory equivalent for temporary disability benefits as determined by the department may be used for purposes of this chapter."

The Department of Labor and Industrial Relations has clarified that for self-insured employers, only the accrued and available sick leave that exceeds the TDI plan requirement may be used for HFLL family leave purposes. Haw. Admin. R. § 12-27-9(c). For example, if an employer's approved self-insured TDI plan provides fifteen days of sick leave per year at 100% wage replacement with no waiting period, and an employee has accrued twenty days of sick leave, the employer must permit the employee to use up to ten days of the five-day excess (the twenty accrued days minus the fifteen-day TDI reserve) for family leave purposes under HFLL. The fifteen days reserved to satisfy the TDI requirement cannot be invaded.

Employer conditions on sick leave use apply equally to family leave use

All conditions and restrictions that an employer places on the use of sick leave for the employee's own illness also apply to the use of sick leave for family leave purposes. Haw. Admin. R. § 12-27-9(b). If the employer's sick leave policy requires no medical certification for the employee's own illness, the employer may not impose a certification requirement solely when the employee seeks to use sick leave for family leave. Conversely, if the employer's sick leave policy includes a waiting period before sick leave benefits are payable for the employee's own illness, the same waiting period applies to sick leave used for family leave purposes.

Sick leave for family leave is an employee election, not an employer mandate

Under Haw. Rev. Stat. § 398-4(b), an employee may elect to substitute accrued paid leaves (vacation, personal leave, or family leave) for any part of the four-week HFLL entitlement. Section 398-4(c) imposes an obligation on employers who provide sick leave: they must permit the employee to use sick leave for family leave purposes, subject to the ten-day cap and the TDI carve-out. The statute does not require an employer who does not already provide sick leave to create a sick leave plan. Hawaii Department of Labor and Industrial Relations guidance confirms that HFLL does not require employers to create a sick leave plan if they do not currently provide sick leave to employees.

No requirement to provide sick leave beyond existing accruals

HFLL does not require an employer to provide more sick leave than what the employee is entitled to under the employer's sick leave plan. If an employee uses all accrued sick leave for the employee's own disability, the employer is not required to provide additional sick days for the employee to use for family leave purposes. Similarly, if the employee uses all accrued sick leave for family leave purposes and then the employee later becomes sick, the employer is not required to provide additional sick days for the employee's illness, unless the employer has an "equivalent sick leave plan" under the TDI law that provides for additional accrual.

Source: Haw. Rev. Stat. § 398-4 Source: Haw. Admin. R. § 12-27-9 Source: Hawaii DLIR, Hawaii Family Leave FAQ

The Hawaii Family Leave Law imposes distinct notice and certification obligations on employees requesting family leave. Notice is an advance procedural requirement; certification is documentary evidence the employer may (but is not required to) demand.

Notice requirement under HRS § 398-5

When the necessity for family leave is foreseeable (birth, adoption, or a scheduled medical procedure for a serious health condition), the employee must provide the employer with prior notice of the expected event "in a manner that is reasonable and practicable." Haw. Rev. Stat. § 398-5. The statute does not fix a specific notice period, leaving the determination of what is "reasonable and practicable" to the facts of each case.

The implementing regulation, Haw. Admin. R. § 12-27-10(b), provides more structure. When leave is foreseeable, the employee must give at least thirty days' written notice before the date family leave is expected to commence. If foreseeable leave cannot be scheduled thirty days in advance (for example, because the employee only learned of a scheduled adoption two weeks out), the employee must give as much notice as is practicable—defined as notice provided "as soon as both possible and practical, taking into account all of the facts and circumstances in the individual case." For unforeseeable leave (an emergency hospitalization, a premature birth), the employee must give notice "as soon as practicable"—the same standard.

Data-collection system requirement

Since 2009, Haw. Rev. Stat. § 398-5 has also required that requests for family leave "include evidence that the employee has submitted the request and provided required data in accordance with section 398-9.5." Section 398-9.5 directed the Department of Labor and Industrial Relations to establish a statewide electronic data-collection system for tracking family leave usage. Employees must enter specified information into the system and provide the employer with evidence (typically a printout or confirmation number) that the data has been submitted. The regulation at Haw. Admin. R. § 12-27-10(a)(1) requires employers to inform employees of this data-submission obligation and the consequences of failure to comply.

Certification requirements under HRS § 398-6

Certification is optional for the employer. Haw. Rev. Stat. § 398-6(a) provides that an employer "may require" that a claim for family leave be supported by written certification. If the employer elects to require certification, the acceptable sources and timing vary by the reason for leave.

For birth of a child, certification must be issued by a health care provider or the family court. Haw. Rev. Stat. § 398-6(b). For placement of a child for adoption, certification must be issued by a recognized adoption agency, the attorney handling the adoption, or the individual officially designated by the birth parent to select and approve the adoptive family. Id.

For leave to care for a child, spouse, reciprocal beneficiary, sibling, grandchild, or parent with a serious health condition, certification must be issued by the health care provider of the individual requiring care. Haw. Rev. Stat. § 398-6(c). Certification is deemed sufficient if it provides information as required by the director of the Department of Labor and Industrial Relations. Id.

Timing of certification

Haw. Admin. R. § 12-27-11(b) provides that when the request for family leave is foreseeable, the employee must furnish certification prior to the commencement of the family leave. In the case of unforeseeable family leave, the employee must furnish certification no later than two working days after the family leave commences.

Cost of certification

Unless the employer provides otherwise, certification requested by the employer is at the employee's expense. Haw. Admin. R. § 12-27-11(a). The regulation permits an exception in subsection (e), but the text of that subsection was not published in the official codification; employers may impose a contrary cost-allocation rule by policy.

Consequences of failure to provide timely notice

Haw. Admin. R. § 12-27-10(c) provides that if an employee fails to give proper notice, the employer may delay the commencement of family leave until the employee provides proper notice, or until at least thirty days after the date the employee first notified the employer of the need for family leave, whichever is earlier. This rule only applies to foreseeable leave; unforeseeable leave, by definition, cannot be delayed by a notice violation.

Source: Haw. Rev. Stat. § 398-5 Source: Haw. Rev. Stat. § 398-6 Source: Haw. Rev. Stat. § 398-9.5 Source: Haw. Admin. R. § 12-27-10 Source: Haw. Admin. R. § 12-27-11