Most American women do not receive any rights to paid family leave but if you’re a pregnant woman working in the State of Hawaii, or you are expecting your spouse to have a child, you are in luck. The state of Hawaii provides three different laws that provide for paid maternity and paternity leave for qualifying individuals. On top of that, you also have access to federally protected unpaid leave if you qualify under FMLA.
The three different state regulations are: The Hawaii Family Leave Law (or HFLL), the Hawaii State Disability Program and Hawaii Statute 383-7.6 which expands the definition of what it means to be eligible for unemployment benefits. Let’s look at each of these three laws:
How Much Leave Will I Receive Under Hawaii’s Disability Program?
Mothers (not fathers) are entitled to receive pay during the time that she cannot work due to the physical disability of being pregnant and/or postpartum recovery. Typically, for postpartum recovery, medical providers will certify your “disability” for up to 6 weeks for a vaginal birth and up to 8 weeks for a C-section birth. Employers may or may not request medical verification from a medical care provider of your inability to work due to pregnancy or childbirth.
To qualify for disability benefits, you must have worked for at least 20 hours per week for 14 weeks in Hawaii and earned at least $400 in the year prior to the day you first claim disability benefits. The 14 weeks of work you are required to become eligible may have occurred at different employers. That is because TDI is actually an insurance program that the state of Hawaii requires every employer in Hawaii to take out on behalf of their employees.
How Much Pay Do I Receive Under Hawaii’s Temporary Disability Insurance Program?
Your employer’s plan (which must have been approved by the state) may differ from other employers’ plans but generally, the minimum benefits are that you must receive 58% of your average weekly wages, rounded up to the nearest dollar, with a maximum weekly benefit of $570 in 2016. Every year, the maximum will change. The waiting period for your first payment is 7 consecutive days (meaning you will be paid on the 8th day of your disability). You cannot take more than a maximum of 26 weeks of benefit payments per year.
How Do I Apply for Temporarily Disability Insurance?
You must file a claim on Form TDI-45 which you may obtain either by contacting Hawaii’s Department of Labor or your own employer. The claim must be filed within 90 days of the date you were disabled or you may lose part of your benefit unless you can show good reason for the filing delay. Answers to frequently asked questions about Hawaii’s short term disability insurance program may be found here.
What Rights Do I Have Under HFLL?
If you have worked for at least 6 months at a company (with no minimum number of hours required) with at least 100 part-time, temporary or intermittent employees located in the state of Hawaii for at least 20 weeks, then you are entitled to 4 weeks of job-protected unpaid leave to care for a newborn or newly adopted child. Both mothers and fathers may take this leave and do not have to share the 4 week allotment if they work for the same employer.
In addition, you also have the right to use up to 10 days of accrued sick days to care for a newly born infant or recently adopted child. This paid leave can also be used to care for a spouse with a pregnancy-related disability or for a spouse recovering from childbirth.
However, some important caveats apply to taking paid sick leave for your maternity leave period. If your employer does not offer paid sick days off, or offers less than 10 days of sick days or doesn’t have a sick leave policy at all, then HFLL does not require that employer to create one for you or expand their policy to cover your situation. In other words, mothers and fathers have the right to use up to 10 days of accrued paid sick leave for parental leave if they had that right and benefit to paid sick time off in the first place.
Am I Really Eligible to Collect Unemployment While I’m Out on Maternity or Paternity Leave?
Yes, if you become “separated” from your employer. In other words, if you end your employment during your parental leave period, you may start collecting unemployment benefits.
What Rights Do I Have Under FMLA?
We have previously written about FMLA extensively and you may consult the benefits you can receive and qualifications for eligibility in our summary of FMLA here.
What If I Qualify for FMLA and HFLL and Pregnancy Disability Leave?
The leave periods run concurrently so that you may want to take your disability leave which provides [some/complete??] wage coverage and then any accrued sick leave (e.g. up to 10 days paid) followed by whatever remaining number of weeks you may still have under FMLA. To use an example, if you are out on pregnancy disability for 6 weeks, and then qualify to use your accrued sick leave of 10 days, you have taken 8 weeks of leave and still have another 4 weeks remaining under FMLA.
What If I Have Other Questions?
You may consult Hawaii’s Labor Department for frequently asked questions about family leave in Hawaii or Hawaii’s Civil Rights Commission’s Pregnancy Discrimination Fact Sheet. Please note that while we are not attorneys, we've summarized what we could find from publicly available sources regarding your leave rights as a Hawaii employee. You may also file a complaint with Hawaii’s Civil Rights Commission within 180 days if you believe you have been discriminated based on your pregnancy.
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