Hawaii has enacted legislation (Senate Bill 2638) that amends the rules governing certification of the need for domestic violence leave and reasonable accommodations. Senate Bill 2638 takes effect January 1, 2021.
Background:
Hawaii Rev. Stat. § 378-72:
Hawaii Rev. Stat. § 378-72 requires employers to provide unpaid leave to employees if they or their minor child have been a victim of domestic violence or sexual violence. Employers with 50 or more employees must allow employees to take up to 30 days of such leave per calendar year. Employers with fewer than 50 employees must allow employees to take up to five days per calendar year.
Employees may use this leave to:
- Seek medical attention for themselves or their minor child to recover from physical or psychological injury or disability;
- Obtain services from a victim services organization;
- Obtain psychological or other counseling;
- Temporarily or permanently relocate; or
- Take legal action or other actions to enhance the physical, psychological, or economic health or safety of the employee or their minor child or to enhance the safety of those who associate with or work with the employee.
The statute also includes rules governing certification of an individual's need for such leave.
Hawaii Rev. Stat. § 378-81:
Hawaii Rev. Stat. § 378-81 generally requires employers to provide a reasonable accommodation to employees who are victims of domestic or sexual violence, such as:
- Changing the employee's contact information, such as telephone numbers, fax numbers, or email addresses;
- Screening the employee's telephone calls;
- Restructuring the employee's job functions;
- Changing the employee's work location;
- Installing locks and other security devices; and
- Allowing the employee to work flexible hours.
Senate Bill 2638:
Under Senate Bill 2638, if the employee: (1) has taken more than five calendar days of leave for non-medical reasons under Hawaii Rev. Stat. § 378-72; or (2) requests a reasonable accommodation under Hawaii Rev. Stat. § 378-81, then the employer may ask the employee to provide certification/verification in one of the following forms:
- Certified or exemplified restraining orders, injunctions against harassment, and documents from criminal cases;
- Documentation from a victim services organization or domestic or sexual violence program, agency, or facility, including a shelter or safe house for victims of domestic or sexual violence; or
- Documentation from a medical professional, mental healthcare provider, attorney, advocate, social worker, or member of the clergy from whom the employee or their minor child has sought assistance in relation to the domestic or sexual violence.
For the purposes of reasonable accommodations, employers may request verification no more than once every six months. However, if the employee provides a protective order with an expiration date, the employer is prohibited from requesting any further verification until the date of the expiration or any extensions of the protective order, whichever is later.
Note: As is the case under existing law, if an employee has taken no more than five calendar days of leave for non-medical reasons, the employee may be asked to provide certification in the form of a signed statement, within a reasonable period, indicating that the employee or the their minor child is a victim of domestic or sexual violence and the leave is for one of the covered reasons.
Compliance Recommendations:
Hawaii employers should review their policies and procedures to ensure compliance with Senate Bill 2638 by January 1, 2021. Please contact your dedicated service professional with any questions.