Title 12, Chapter 27 (Family Leave)

ADMINISTRATIVE RULES
TITLE 12
DEPARTMENT OF LABOR AND INDUSTRIAL RELATIONS
CHAPTER 27
THE ADMINISTRATION AND ENFORCEMENT OF
THE FAMILY LEAVE LAW
Subchapter 1 	Administration and Enforcement
§12-27-1 	Definitions
§12-27-2 	General provisions
§12-27-3 	Computation of time
§12-27-4 	Employment relationship determination
§12-27-5 	Employer coverage and employee
eligibility
§12-27-6 	Family leave entitlement and use
§12-27-7 	Intermittent family leave
§12-27-8 	Unpaid and paid leave
§12-27-9 	Use of sick leave for family leave
§12-27-10 	Notice requirements
§12-27-11 	Certification
§12-27-12 	Employment and benefits protection
§12-27-13 	Record keeping
§§12-27-14 to 12-27-19 	(Reserved)
Subchapter 2 	Complaint and Investigation
Procedures
§12-27-20 	Filing of complaint
§12-27-21 	Contents of complaint
§12-27-22 	Service of complaint and answer
§12-27-23 	Withdrawal of complaint
§12-27-24 	Dismissal of complaint
§12-27-25 	Predetermination settlement
§12-27-26 	Investigation and fact-finding conference
§12-27-27 	Conference and conciliation
§12-27-28 	Conciliation agreement
§12-27-29 	Demand and order

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§12-27-1
§12-27-30 	Compliance review and reports
§12-27-31 	Notice of right to sue
§12-27-32 	Appeal
§§12-27-33 to 12-27-39 	(Reserved)
Subchapter 3 	Hearing of Appeal
§12-27-40 	Definitions
§12-27-41 	Prehearing conference
§12-27-42 	Hearing
§12-27-43 	Powers and duties of hearings officer
§12-27-44 	Evidence
§12-27-45 	Decision
§12-27-46 	Judicial Review
SUBCHAPTER 1
ADMINISTRATION AND ENFORCEMENT
§12-27-1 	Definitions. 	As used in this chapter:
"Attorney general" means the State attorney
general or any deputy of the State attorney general.
"Benefit" means any employment benefit (other
than salary or wages) provided or made available to an
employee by an employer, including group life
insurance, health insurance, disability insurance,
paid and unpaid leave, educational benefits, and
pension, regardless of whether the benefit is provided
by a policy or practice of an employer or by an
employee benefit plan as defined in section 3(3) of
the Employee Retirement Income Security Act of 1974
(29 U.S.C. 1002(1)).
"Calendar week" means the period from Sunday to
Saturday of each week.
"Calendar year" means the period from January to
December of each year.
"Child" means an individual who is a biological,
adopted, or foster son or daughter; a stepchild; or a
legal ward of an employee. 	For purposes of this
chapter:

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§12-27-1
(1) 	For the serious health condition of a child
of the employee, there is no age limitation,
except as imposed by a court under the terms
of a foster care order.
(2) 	A foster child means an individual who is
placed with the employee for care under
court appointed supervision or through other
authorized child service agencies pursuant
to foster custody provisions of chapter 587,
HRS. 	When the court or authorized agency
terminates the foster care arrangement, the
individual no longer meets this definition.
(3) 	A stepchild means the biological son or
daughter of the employee’s spouse. 	When an
employee is divorced from the biological
parent of the child, the stepparent-child
relationship ceases.
"Complaint" means a verified written statement
filed with the department, alleging an unlawful
practice within the meaning of the statute.
"Complainant" means the person who has filed a
complaint.
"Department" means the department of labor and
industrial relations.
"Director" means the director of labor and
industrial relations.
"Employee" means a person who performs services
for hire for not fewer than six consecutive months for
the employer from whom benefits are sought under the
statute.
"Employer" means any individual or organization,
including the State, any of its political
subdivisions, any instrumentality of the State or its
political subdivisions, any partnership, association,
trust, estate, joint stock company, insurance company,
or corporation, whether domestic or foreign, or
receiver or trustee in bankruptcy, or the legal
representative of a deceased person, who employs one
hundred or more employees for each working day during
each of twenty or more calendar weeks in the current
or preceding calendar year.

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§12-27-1
"Employment" or "employed" means service,
including service in interstate commerce, performed
for wages under any contract of hire, written or oral,
express or implied, with an employer.
"Health care provider" means a physician as
defined under section 386-1, HRS, which includes a
doctor of medicine, a dentist, a chiropractor, an
osteopath, a naturopath, a psychologist, an
optometrist, and a podiatrist.
"Hearings officer" means a person appointed by
the director to conduct hearings under the statute.
"HRS" means Hawaii Revised Statutes.
"Parent" means a biological, foster, or adoptive
parent, a parent-in-law, a stepparent, a legal
guardian, a grandparent, or a grandparent-in-law. 	For
purposes of the statute:
(1) 	When the foster care arrangement is
terminated by the court or authorized
agency, the individual no longer meets this
definition.
(2) 	Parent-in-law means the parent of the
employee’s spouse.
(3) 	Stepparent means the spouse of the
employee’s biological parent.
(4) 	Grandparent means the biological or adoptive
grandparent of the employee.
(5) 	Grandparent-in-law means the biological or
adoptive parent of the employee’s spouse.
"Reciprocal beneficiary" shall be as recognized
in Hawaii under chapter 572C, HRS. 	Requisites of a
valid reciprocal relationship and registration as
reciprocal beneficiaries are as provided in sections
572C-4 and 572C-5, HRS.
"Serious health condition" means a physical or
mental condition that warrants the participation of
the employee to provide care during the period of
treatment or supervision by a health care provider,
and:
(1) 	Involves inpatient care in a hospital,
hospice, or residential health care
facility; or

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§12-27-1
(2) 	Requires continuing treatment or continuing
supervision by a health care provider.
To further clarify, "serious health condition" under
Title 29, subpart A, section 825.114, and subpart H,
section 825.800, of the Code of Federal Regulations as
it existed on April 6, 1995, are incorporated by
reference, subject to the following:
(1) 	Under section 825.114(a)(2)(ii), and under
the section 825.800 definition of "serious
health condition", pregnancy and prenatal
care are not considered serious health
conditions unless certified by a health care
provider;
(2) 	Where the term appears in sections 825.114
and 825.800, "health care provider" shall be
as defined under the statute; and
(3) 	"Serious health condition" is limited to the
employee’s child, parent, spouse or
reciprocal beneficiary as defined under the
statute, and does not apply to an employee’s
own serious health condition.
"Spouse" means a husband or wife as recognized
under chapter 572, HRS, relating to marriage in
Hawaii.
"Statute" means chapter 398, HRS.
"Verified" means sworn to or affirmed before a
notary public or an authorized departmental
representative.
"Wages" or "pay" means compensation for labor or
services rendered by an employee, whether the amount
is determined on a time, task, piece, commission,
salary, or other basis of calculation. 	It shall
include the reasonable cost, as determined by the
department under chapter 387, HRS, to the employer of
furnishing an employee with board, lodging, or other
facilities if such board, lodging, or other facilities
are customarily furnished by the employer to the
employer's employees, but shall not include tips or
gratuities of any kind.
"Week" means the equivalent number of hours in
the employee’s regular workweek. 	For an employee with
work hours that vary each week, the average number of

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§12-27-1
work hours during the four weeks prior to the request
for family leave will constitute a week for purposes
of this chapter. 	[Eff 2/3/05 	] (Auth: 	HRS
§398-11) (Imp: 	HRS §§398-11)
§12-27-2 	General provisions. 	This chapter sets
forth the procedures for the administration and
enforcement of the statute. 	[Eff 2/3/05 	]
(Auth: 	HRS §398-11) (Imp: 	HRS §398-9)
§12-27-3 	Computation of time. 	Except where
otherwise specified, the time in which any act
provided by this chapter is to be done is computed by
excluding the first day and including the last, unless
the last day is a Saturday, Sunday, or holiday
pursuant to section 8-1, HRS, and then it is also
excluded. 	This section shall not apply to section
12-27-9. 	[Eff 2/3/05 	] (Auth: 	HRS §398-11)
(Imp: 	HRS §398-9)
§12-27-4 	Employment relationship determination.
Services performed by an individual for wages or under
any contract of hire shall be deemed to be employment
subject to the statute unless and until it is shown to
the satisfaction of the department that:
(1) 	The individual has been and will continue to
be free from control or direction over the
performance of such service, both under the
individual’s contract of hire and in fact;
(2) 	The service is either outside the usual
course of the business for which the service
is performed or that the service is
performed outside of all the places of
business of the enterprise for which the
service is performed; and
(3) 	The individual is customarily engaged in an
independently established trade, occupation,
profession, or business of the same nature

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§12-27-5
as that involved in the contract of service.
[Eff 2/3/05 	] (Auth: 	HRS §398-11)
(Imp: 	HRS §398-1)
§12-27-5 	Employer coverage and employee
eligibility. 	(a) 	To meet the employee count for
employer coverage under the definition of "employer"
in section 398-1, HRS, and section 12-27-1:
(1) 	The count of employees includes all
employees maintained on the employer’s
payroll who work within the State of Hawaii.
Employees of employers doing business in
Hawaii who are stationed at worksites
outside of Hawaii are not included in the
count.
(2) 	All employees of the employer, regardless of
their months of employment, shall be
counted. 	The count is not limited to only
employees who are eligible for family leave
under the statute.
(3) 	Full-time, part-time, temporary and
intermittent employees are counted as long
as they are maintained on the payroll for
the week.
(4) 	Employees on authorized paid or unpaid
leave, including, but not limited to, family
leave, leaves of absence, and disciplinary
suspension, are counted as long as the
employer has a reasonable expectation that
the employee will return to active
employment.
(b) 	It is not necessary that every employee
actually perform work on each working day. 	For
practical purposes, "each working day" shall be
recognized as the regular workweek established by the
employer. 	Any employee whose name appears on the
employer’s payroll will be considered employed each
working day of the calendar week, and must be counted
whether or not any compensation is received for the
week. 	An employee who does not begin to work for an
employer after the first working day of a calendar

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§12-27-5
week, or who terminates employment before the last
working day of a calendar week, is not considered
employed on each working day of that calendar week.
(c) 	The count of employees to determine employer
coverage is done at the time an employee gives notice
of the need for family leave. 	Whether the family
leave is to be taken at one time or intermittently,
once an employee is determined eligible for the family
leave, the employee’s eligibility is not affected by
any subsequent change in the count of employees.
Similarly, an employer may not terminate any family
leave that has already started if the employee count
drops below one hundred.
(d) 	For purposes of this chapter, Title 29,
subpart A, sections 825.104(c) and 825.106, of the
Code of Federal Regulations as it existed on April 6,
1995, pertaining to integrated and joint employers,
are incorporated by reference, except that under the
example used in subsection (d), the employee count
must total 100 or more.
(e) 	To be eligible, an employee must have
performed actual work for at least six consecutive
months without a break due to resignation,
termination, or layoff. 	Periods of paid leave or
authorized leave without pay are not considered to
cause a break in employment. 	[Eff 2/3/05 	]
(Auth: 	HRS §398-11) (Imp: 	HRS §§398-1, 398-2)
§12-27-6 	Family leave entitlement and use.
(a) 	Pursuant to chapter 398, HRS, an employee is
entitled to a total of four weeks of family leave each
calendar year:
(1) 	Upon the birth of a child of the employee or
the adoption of a child by the employee; or
(2) 	To care for the employee’s child, spouse or
reciprocal beneficiary, or parent with a
serious health condition.
(b) 	The use of family leave is limited to a
twelve-month period.
(c) 	For purposes of subsection (b), any fixed
and consecutive period of twelve months established by

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§12-27-6
the employer, that is consistently and uniformly
applied with respect to all eligible employees, shall
be recognized. 	A twelve-month period may include, but
not be limited to, a:
(1) 	Calendar year;
(2) 	Fiscal year or similar fixed leave year,
such as an employee anniversary date;
(3) 	Period beginning with the first use of
family leave for an event, with the next
twelve-month period beginning with the first
time family leave is used after the
completion of the previous twelve-month
period; or
(4) 	"Rolling" period measured backward from the
date the employee uses family leave. 	Under
this method, each time an employee takes
family leave, the remaining leave
entitlement shall be any balance of the four
weeks which has not been used during the
immediately preceding twelve months.
(d) 	Family leave entitlement per calendar year
is not cumulative, and any unused amount shall not
carry over or accrue to the next calendar year.
However, if an employee begins to take family leave in
a calendar year which ends before the four-week
limitation is met, the employee may take the balance
of the four weeks of family leave in the twelve-month
period by relying upon part of the next calendar
year’s four-week entitlement.
(e) 	An employee’s entitlement to four weeks of
family leave upon the birth of a child of the employee
expires twelve months after the child’s birth. 	In
cases where the employee is adopting a child and has
filed a petition for adoption, the court or authorized
agency may place or allow the employee to retain
custody of the child and be responsible for care
before the actual adoption decree is issued. 	In these
situations, the employee is entitled to family leave
upon the placement of the child for adoption.
(f) 	Family leave for a serious health condition
applies to an employee who is needed to care for the
employee’s child, spouse, parent, or reciprocal

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§12-27-6
beneficiary with a serious health condition, but shall
not include the serious health condition of the
employee.
(g) 	Use of family leave is limited to four weeks
during any twelve-month period for any and all reasons
that qualify under the statute. 	As such, during an
established twelve-month period, if an employee uses
the four-week maximum of family leave for one or more
qualifying reasons, the employee will have exhausted
the amount of allowable family leave for that
particular twelve-month period.
(h) 	An eligible employee’s right to family leave
shall not be limited by the availability of other
family members as long as the leave is for a
qualifying reason and the employee provides required
certification of the reason. 	The need for family
leave may encompass both physical and psychological
care or comfort.
(i) 	When the same employer employs both husband
and wife, each spouse is entitled to four weeks of
family leave. 	[Eff 2/3/05 	] (Auth: 	HRS
§398-11) (Imp: 	HRS §§398-1, 398-3)
§12-27-7 	Intermittent family leave. 	(a) 	Family
leave may be taken intermittently during each calendar
year. 	Family leave need not be taken immediately upon
the birth or adoption of a child, or upon commencement
of a serious health condition. 	Because family leave
may be taken intermittently and for less than a week,
an employer is allowed to convert the four-week
entitlement to an equivalent number of hours based on
the current regular workweek of the employee as
follows:
(1) 	Where the employee has a part-time regular
workweek schedule, the amount of family
leave entitlement is determined on a
proportional or equivalent basis by
comparing with the employee’s normal work
schedule;
(2) 	Where an employee’s regular workweek
schedule varies, a weekly average of the

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§12-27-8
hours worked over the four weeks prior to
the beginning of family leave shall be used
to calculate the employee’s normal workweek.
(c) 	An employer may determine the size of
intermittent family leave increments as the shortest
period of time that the employer’s payroll system uses
to account for use of leave, provided that the
shortest incremental period is one hour or less.
(d) 	If an employee takes family leave on an
intermittent basis, the employer may offer to modify
existing duties and conditions of the employee’s
regular job to better accommodate the intermittent
leave. 	The employer may also offer the employee a
temporary transfer to an available alternative
position for which the employee is qualified and which
better accommodates intermittent periods of leave than
does the employee’s regular position. 	The position
modification or transfer will be permitted if:
(1) 	The employee agrees to the alternative
position transfer or modification of the
employee’s regular position;
(2) 	The transfer or modification is in
compliance with any applicable collective
bargaining agreement and any federal and
state law; and
(3) 	The alternative transfer or modified
position has equivalent pay and benefits of
the employee’s regular job, even if the
employer must increase the pay and benefits
of the alternative position in order to meet
the equivalency. 	[Eff 2/3/05 	]
(Auth: 	HRS §398-11) (Imp: 	HRS §398-3)
§12-27-8 	Unpaid and paid leave. (a) 	Notwith-
standing section 12-27-9, the four weeks of family
leave consists of unpaid leave. 	However, the
employee’s accrued paid leaves, including, but not
limited to, vacation, personal, or family leave
provided by policy or contract, may be substituted for
any part of the four weeks as follows:

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§12-27-8
(1) 	An employer may not deny the right of an
employee to elect to substitute those
accrued paid leaves for any part of the
unpaid family leave.
(2) 	If the employee does not elect to substitute
the employee’s accrued paid leaves, the
employer may require the employee to
substitute those accrued paid leaves for any
part of the four weeks of family leave.
However, if an employer requires an employee
to substitute those accrued paid leaves for
all or part of the four weeks of family
leave, the employer must provide notice to
the employee in advance of the intended
action.
(3) 	If neither the employer nor the employee
elects to substitute those accrued paid
leaves, the four weeks of family leave will
be considered unpaid, and the employee will
remain entitled to all those paid leaves
which are earned or accrued prior to or
during the family leave.
(4) 	Except as mutually agreed upon by both
parties, an employer may not retroactively
apply accrued paid leaves against family
leave after the employee has returned to
work.
(b) Section 825.207(i) of the Code of Federal
Regulations, as it existed on April 6, 1995, is
incorporated by reference. 	That section states in
part that Section 7(o) of the Fair Labor Standards Act
(29 U.S.C. §7(o)) permits public employers under
prescribed circumstances to give compensatory time off
accrued at one and one-half hours for each overtime
hour worked in lieu of paying cash to an employee when
the employee works overtime hours as prescribed by the
federal Fair Labor Standards Act. 	This compensatory
time off is not a form of accrued paid leave that an
employer may require the employee to substitute for
unpaid family leave. 	[Eff 2/3/05 	] (Auth: 	HRS
§398-11) (Imp: 	HRS §398-4)

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§12-27-9
§12-27-9 	Use of sick leave for family leave.
(a) 	An employer who provides paid sick leave shall
permit an employee to use up to ten days of the
employee’s accrued and available sick leave per year
for family leave purposes unless an express provision
of a valid collective bargaining agreement authorizes
the use of more than ten days of sick leave for family
leave purposes.
(b) 	All conditions and restrictions placed by
the employer upon the use by an employee of sick leave
shall also apply to the use by an employee of sick
leave for family leave purposes.
(c) 	For employers who are self insured for
temporary disability insurance purposes, only the
accrued and available sick leave that is in excess of
the temporary disability insurance plan approved
pursuant to chapter 392, HRS, is available for family
leave purposes.
(d) 	For purposes of this section:
"Accrued and available" means accumulated sick
leave that the employee may immediately use.
"Sick leave" means accrued increments of
compensated leave provided by an employer to an
employee for use by the employee during an absence
from the employment for any of the following reasons:
(1) 	The employee is physically or mentally
unable to perform the employee’s duties due
to illness, injury, or a medical condition
of the employee;
(2) 	The absence is for the purpose of obtaining
professional diagnosis or treatment for a
medical condition of the employee; or
(3) 	The absence is for other medical reasons of
the employee, such as pregnancy or obtaining
a physical examination.
"Sick leave" shall not include any benefit provided
under an employee welfare benefit plan subject to the
federal Employee Retirement Income Security Act of
1974 and shall not include any insurance benefit,
workers' compensation benefit, unemployment
compensation disability benefit, temporary disability

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§12-27-9
insurance benefit, or benefit not payable from the
employer.
"Year" means a calendar year.
[Eff 2/3/05 	] (Auth: 	HRS §398-11) (Imp: 	HRS
§§398-1, 398-4)
§12-27-10 	Notice requirements. 	(a) 	Every
employer covered by the statute shall notify employees
in writing at the time of hire of their rights and
responsibilities under the statute, including any
employer policy regarding the statute. 	The notice,
and any revision, shall contain, but not be limited
to:
(1) 	Any requirement for the employee to furnish
certification in accordance with
section 398-6, HRS, and section 12-27-11,
and the consequences of failure to do so;
(2) 	The employee's right to substitute accrued
paid leave, and whether the employer will
require the substitution of any paid leave;
(3) 	Any requirement for the employee to make any
premium payments to maintain health and
other benefits and the arrangements for
making such payments;
(4) 	Information on employee right to restoration
to the same or equivalent position as
required under the statute; and
(5) 	Other information as required by the
department.
(b) 	An employee shall give notice to the
employer of the need for family leave as follows:
(1) 	If foreseeable, at least thirty days written
notice before the date family leave is
expected to commence;
(2) 	For foreseeable notice in which it is not
possible or practicable to give as much as
thirty days written notice before
commencement of family leave, at least
verbal notification to the employer within
two working days before the commencement of

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§12-27-10
family leave, and written notice to follow
as soon as practicable; or
(3) 	If the need for family leave is not
foreseeable, the employee shall give at
least a verbal notice to the employer within
two working days of learning of the need for
family leave, or as soon as practicable
under the facts and circumstances of the
particular situation. 	If the verbal notice
is provided as soon as practicable, the
employer shall not deny or delay family
leave. 	If the employer requires a
subsequent written notice to confirm the
verbal notice, the employee shall submit
that notice as soon as practicable.
(c) 	Notice in subsection (b) is considered
sufficient if it is provided by correspondence,
facsimile, or other electronic means, except that
notice in paragraph (b)(3) is considered sufficient if
it is provided in person or by telephone. 	In cases
where the employee is unable to provide notice
personally, the employee’s designated spokesperson,
such as the spouse, adult family member, or other
responsible party, is allowed to provide the notice.
(d) 	If known, the employee shall provide notice
to the employer of the general reason for the request,
the anticipated start of family leave, and the
anticipated duration of family leave. 	In cases where
the start or duration of family leave is not known,
the employer shall not deny or delay family leave if
the employee has otherwise provided timely verbal or
other notice in accordance with subsection (b). 	The
employer may request further information in order to
make a determination as to whether certification under
section 12-27-11 will be needed to support the
approval of family leave.
(e) 	If an employee fails without a reasonable
excuse to provide notice to the employer as required
under this section, the employer may delay the taking
of family leave until the employee is able to provide
proper notice, or until at least thirty days after the

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§12-27-10
date the employee first notified the employer of the
need for family leave. 	[Eff 2/3/05 	] (Auth:
HRS §398-11) (Imp: 	HRS §398-5)
§12-27-11 	Certification. 	(a) 	An employer may
require that a claim for family leave be supported by
written certification. 	Unless the employer provides
otherwise, certification requested by the employer
under this section shall be at the employee's expense,
except as provided in subsection (e).
(b) 	When the request for family leave is
foreseeable, the employee shall furnish certification
prior to the commencement of the family leave. 	In the
case of unforeseeable family leave, the employee shall
furnish certification no later than two working days
after the family leave commences.
(c) 	The following shall be deemed acceptable
certification:
(1) 	For the birth of a child of an employee, a
written statement issued by a health care
provider or the family court;
(2) 	For the placement of a child for adoption
with an employee:
(A) 	The petition filed by the employee with
the court; or
(B) 	A written statement issued by:
(i) 	A recognized adoption agency;
(ii) 	The attorney handling the
adoption; or
(iii) 	The individual officially
designated by the birth parent to
select and approve the adoptive
family.
(3) 	For the serious health condition of a child,
spouse, parent, or reciprocal beneficiary, a
written statement by a health care provider.
Certification shall contain the following
information:
(A) 	The patient’s name and relationship to
the employee;

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§12-27-11
(B) 	The health care provider’s name, title,
type of practice or field of
specialization, location, and
signature;
(C) 	A statement that the patient’s
condition qualifies for family leave as
a serious health condition as defined
under section 12-27-1;
(D) 	A statement that the employee is needed
to participate in the care of the
patient;
(E) 	A statement that the patient’s
condition requires hospitalization or
the health care provider’s continuing
treatment or continuing supervision;
(F) 	The approximate date the serious health
condition commenced, and the probable
duration that the employee will be
needed to care for the patient with a
serious health condition; and
(G) 	Whether it will be necessary for the
employee to take leave intermittently;
and, if so, the estimated period of
time that the employee will be needed
to care for the patient with a serious
health condition.
(d) 	For situations where the serious health
condition is chronic and continuous, and the employee
foresees the need for family leave in another twelve-
month period, the employer may require the employee to
provide certification by the health care provider of
the serious health condition for each twelve-month
period of family leave.
(e) 	At the employer’s expense, an employer may
also require re-certification during the course of any
twelve-month period, but not more often than thirty
days, if:
(1) 	Circumstances described by the previous
certification have changed significantly;
e.g., the duration of the illness, the
nature of the illness, and complications; or

27-17
§12-27-11
(2) 	The employer receives information that casts
doubt upon the employee’s stated reason for
the absence.
(f) 	In cases where the employee’s original
family leave request was under the four-week maximum,
and the employee requests an extension of the approved
family leave within the twelve-month period, the
employer may require another certification from the
employee of the need for the extension.
(g) 	For purposes of confirming family
relationships in granting of family leave, the
employer may require the employee who gives notice of
the need for family leave to provide reasonable
documentation or statement of the relationship.
Reasonable documentation may include, but is not
limited to, a court document, or a birth, marriage, or
reciprocal beneficiary certificate.
(h) 	If an employer finds a certification
incomplete under paragraph (c)(3), the employer shall
advise the employee and provide the employee a
reasonable opportunity to remedy such deficiency.
(i) 	Notwithstanding subsection (c), for a birth
or a serious health condition occurring or situated
outside the State of Hawaii, certification shall be
deemed sufficient if provided by a health care
provider who is:
(1) 	Authorized and performing within the scope
of practice as defined under a state law; or
(2) 	Authorized to practice in accordance with
the law of another country, and who is
performing within the scope of the practice
as defined under that law.
[Eff 2/3/05 	] (Auth: 	HRS §398-11)
(Imp: 	HRS §§398-1, 398-6)
§12-27-12 	Employment and benefits protection.
(a) 	Upon the return of an employee from family leave,
the employer is required to restore an employee to the
employee's original position, or if no longer
available, an equivalent position with equivalent
terms and conditions of employment. 	A position is

27-18
§12-27-13
considered equivalent if it essentially has, but is
not limited to, the same pay, benefits, working
conditions, privileges, perquisites, status, duties,
responsibilities, seniority, and authority as the
original position. 	These terms and conditions may
include worksite location, shift, work schedule,
opportunity for bonuses, tips, profit sharing, and
other similar discretionary and non-discretionary
payments or benefits.
(b) 	Upon the employee's return to work from
family leave, all benefits earned prior to taking
family leave which were not used during that leave
shall be restored to the employee. 	This includes, but
is not limited to, all benefits which are earned,
accrued, or cumulative, based on statute, contract,
policy, or practice prior to or during the family
leave. 	Leave benefits earned in one year, but not
carried over to the following year by contract,
policy, or practice, are not protected.
(c) 	For purposes of changes in pay and benefits,
an employee on family leave is entitled to changes as
if no leave had been taken, except where the change is
contingent upon seniority or accrual by policy or
contract.
(d) 	If an employee provides to the employer
reasonable advance notice of at least two days
requesting a return to work earlier than originally
granted, the employer is obligated to promptly
reinstate the employee to his or her original or
equivalent position of employment.
[Eff 2/3/05 	] (Auth: 	HRS §398-11) (Imp: 	HRS
§398-7)
§12-27-13 	Record keeping. 	In order to make a
determination on whether an employer is in compliance
with the statute, the department may request and
review the following:
(1) 	Basic payroll and identifying employee data,
such as the employee’s name, address, and
occupation; rate or basis of pay and terms
of compensation; daily and weekly hours

27-19
§12-27-13
worked per pay period; itemized additions to
or deductions from wages; and total
compensation paid;
(2) 	Terms and conditions of, and expenses for,
employee benefits, including, but not
limited to, policies and any employment
agreements relating to leave benefits; and
(3) 	Records, documents, correspondence, and
other material relating to any family leave
granted or denied. 	[Eff 2/3/05 	]
(Auth: 	HRS §398-11) (Imp: 	HRS §398-23)
§§12-27-14 to 12-27-19 	(Reserved)
SUBCHAPTER 2
COMPLAINT AND INVESTIGATION PROCEDURES
§12-27-20 	Filing of complaint. 	(a) 	A complaint
alleging a violation of the statute shall be filed in
accordance with sections 398-21, HRS, and 12-27-21.
(b) 	Where feasible, the complaint shall be filed
on forms furnished by the department.
(c) 	The complaint shall be signed by the
complainant, and the complainant shall certify that:
(1) 	The complaint is filed to the best of the
complainant's knowledge, information, or
belief;
(2) 	The complaint is not filed for an invalid or
improper purpose, such as to harass; and
(3) 	The allegations and other statements of fact
have evidentiary support or are likely to
have evidentiary support after further
investigation.
(d) 	No complaint shall be filed after the
expiration of ninety days after the:
(1) 	Date of the alleged unlawful act; or
(2) 	Date of discovery by the employee of the
alleged unlawful act; however, in no event
shall such a complaint be filed after the

27-20
§12-27-23
expiration of one hundred eighty days of the
alleged unlawful act. 	The filing date of a
complaint is the date the complaint is
received by the department.
[Eff 2/3/05 	] (Auth: 	HRS §398-11)
(Imp: 	HRS §398-21)
§12-27-21 	Contents of complaint. 	In addition to
the conditions of section 12-27-20, each complaint
shall contain, but is not limited to, the following:
(1) 	The full name, address, and telephone number
of the complainant;
(2) 	The full name, address, and telephone number
of the employer, including alternate names
and locations of the employer, if known;
(3) 	A clear and concise statement of the facts
constituting the alleged violation;
(4) 	The date or dates on which the alleged
violation occurred or was discovered by the
complainant; and
(5) 	Other pertinent information as requested by
the department. 	[Eff 2/3/05 	] (Auth:
HRS §398-11) (Imp: 	HRS §398-21)
§12-27-22 	Service of complaint and answer.
(a) 	Within ten days after a complaint has been filed,
the department or the attorney general, as applicable,
shall serve a copy of the complaint on the employer by
certified mail, return receipt requested, or by
personal delivery.
(b) 	The employer may submit a written answer to
the complaint within fifteen days from the date of the
mailing of the complaint or the date of delivery.
[Eff 2/3/05 	] (Auth: 	HRS §398-11) (Imp: 	HRS
§398-21)
§12-27-23 	Withdrawal of complaint. 	(a) 	A
complaint, or any part thereof, may be withdrawn only
upon written consent of the department.

27-21
§12-27-23
(b) 	When requesting withdrawal of a complaint,
the complainant shall submit a written and signed
request to the department.
(c) 	If the notice of complaint has been issued
to the employer, the department shall notify the
employer of the withdrawal in writing.
[Eff 2/3/05 	] (Auth: 	HRS §398-11) (Imp: 	HRS
§398-21)
§12-27-24 	Dismissal of complaint. 	(a) 	The
department shall dismiss a complaint if:
(1) 	The department determines that the complaint
was not filed in accordance with sections
12-27-20 and 12-27-21;
(2) 	At any point after the filing of a
complaint, it is determined that the
department does not have jurisdiction over
the allegations contained in the complaint;
(3) 	It is determined after investigation that
the alleged unlawful act by the employer was
not substantiated or supported by available
evidence;
(4) 	The complainant failed to cooperate with the
department regarding the complaint or
investigation, and the department received
no response from the complainant within ten
days after the date of the mailing of the
notice to the complainant of the
department’s intent to dismiss the
complaint; or
(5) 	The complainant could not be located, and
the complainant did not respond within ten
days to a notice sent by the department to
the complainant’s last known address.
(b) 	In the event of a dismissal of a complaint,
the department shall issue a written notification to
the complainant and employer of the reason or reasons
for dismissal by certified mail, return receipt
requested. 	[Eff 2/3/05 	] (Auth: 	HRS §398-11)
(Imp: 	HRS §§398-9,398-21, 398-23)

27-22
§12-27-26
§12-27-25 	Predetermination settlement.
(a) 	Pursuant to section 398-22, HRS, the department
may dismiss a complaint in which the complainant and
employer agree to settle prior to the issuance of a
determination.
(b) 	The department may dismiss a complaint when
the complainant refuses to accept an offer by the
employer which the department determines would afford
a just resolution for the harm alleged by the
complainant, and the complainant fails to accept the
offer within thirty days after the actual notice of
the offer.
(c) 	Any predetermination settlement shall be in
writing and specific in its terms. 	The written terms
of the settlement shall be signed by the complainant,
the employer, and the department.
(d) 	If approved, the case will be closed without
a finding on the merits of the complaint, and a copy
of the final predetermination settlement shall be
mailed or delivered to the complainant and employer.
(e) 	Participation by the employer in a
predetermination settlement attempt will not be
construed as evidence of a violation of the statute,
or a waiver of the right to a department determination
on the issues raised by the complaint if a settlement
cannot be achieved. 	[Eff 2/3/05 	] (Auth: 	HRS
§398-11)(Imp: 	HRS §398-22)
§12-27-26 	Investigation and fact-finding
conference. 	(a) 	After the filing of a complaint, the
department shall conduct an investigation in
accordance with section 398-23, HRS.
(b) 	As part of the investigation, the department
may require the complainant and employer to attend a
fact-finding conference.
(c) 	The fact-finding conference is primarily for
the purposes of:
(1) 	Ascertaining the positions of the
complainant and employer;
(2) 	Identifying the issues in dispute;
(3) 	Resolving those issues that can be resolved;

27-23
§12-27-26
(4) 	Obtaining evidence; and
(5) 	Determining the possibility of a
predetermination settlement.
(d) 	The department is authorized to issue
subpoenas for the production of documents or the
examination of witnesses deemed necessary for the
investigation of a complaint, and to require
complainant and employer to provide written responses
to requests for information.
(e) 	If the employer or a witness fails to
respond to a subpoena within the time allowed, the
department is authorized to file a petition for
appropriate relief in the circuit court.
(f) 	When the department determines after an
investigation that the statute has been violated, the
department shall notify the complainant and employer
of its determination. 	[Eff 2/3/05 	] (Auth:
HRS §398-11) (Imp: 	HRS §398-23)
§12-27-27 	Conference and conciliation. 	(a)
After a determination has been made pursuant to
subsection 12-27-26(f), the department shall endeavor
to remedy the violation by informal methods, such as
conference or conciliation, and obtain agreement that
the employer will eliminate the unlawful practice and
provide appropriate relief or remedy.
(b) 	The department may require the complainant,
the employer, or both to attend a conciliation
conference for the purpose of attempting to informally
resolve the matter. 	The department shall give notice
of the time and place of the conciliation conference.
(c) 	Where conciliation efforts are successful,
or when deemed to be appropriate by the department, a
conciliation agreement shall be executed in accordance
with section 12-27-28.
(d) 	Should the employer fail or refuse to confer
or to make a good faith effort to resolve any dispute,
or otherwise fail or refuse to cooperate, the
department shall terminate its efforts to conciliate
and shall issue a demand and order in accordance with

27-24
§12-27-28
section 12-27-29. 	[Eff 2/3/05 	] (Auth: 	HRS
§398-11) 	(Imp: 	HRS §398-23)
§12-27-28 	Conciliation agreement. 	(a) The terms
of a successful conciliation shall be reduced to a
written agreement, which shall be signed by the
complainant, the employer, and the department;
provided that, in the judgment of the department, the
agreement provides full and fair relief to the
complainant. 	A copy of the signed conciliation
agreement shall be sent to the complainant and
employer.
(b) 	Where the complainant has refused to accept
a proposed conciliation agreement, the department and
the employer may enter into a conciliation agreement
to which the complainant is not a party if the
agreement does not affect the complainant's rights and
if, in the department's opinion, the agreement
provides for:
(1) 	A just resolution of all violations found;
and
(2) 	The elimination of the unlawful practice.
In that event, the department shall close the case
without the complainant’s consent and shall issue a
notice of right to sue in accordance with section
12-27-31.
(c) 	The department may refuse to approve a
conciliation agreement, even though the complainant
and employer have agreed on the proposed terms, if the
department believes the remedies outlined in the
agreement are inadequate to eliminate the unlawful
practice complained of or fail to provide appropriate
action. 	In that event, the case may be closed as
having been settled on terms not approved by the
department, and the department need not take any
action to enforce the agreement if its terms are
violated. 	[Eff 2/3/05 	] (Auth: 	HRS §398-11)
(Imp: 	HRS §398-23)

27-25
§12-27-29
§12-27-29 	Demand and order. 	(a) 	If the
department finds that informal methods in section
12-27-27 will not resolve the complaint, the
department shall issue an order and a demand for
compliance by certified mail, return receipt
requested, or personal delivery.
(b) 	The demand and order shall require the
employer to:
(1) 	Cease and desist from engaging in the
alleged unlawful practice; and
(2) 	Take appropriate remedial action.
(c) 	Within twenty days after the date of the
demand and order, the employer may either:
(1) 	Notify the department of the employer's
decision to comply by signing and returning
the demand and order; or
(2) 	File a written appeal in accordance with
section 12-27-32.
(d) 	If an employer fails to take any action as
provided in subsection (c), the department or the
complainant may initiate civil action pursuant to
Section 398-25, HRS. 	[Eff 2/3/05 	] (Auth: 	HRS
§398-11) (Imp: 	HRS §398-23)
§12-27-30 	Compliance review and reports.
(a) 	The department is authorized to request proof of
compliance by an employer with the terms of a
predetermination settlement, conciliation agreement,
demand and order, or decision.
(b) 	In order to obtain proof of compliance, the
department may require an employer to submit reports
that the department deems necessary to show the manner
of compliance. 	[Eff 2/3/05 	] (Auth: 	HRS
§398-11) (Imp: 	HRS §398-28)
§12-27-31 	Notice of right to sue. 	(a) 	A notice
of right to sue shall authorize a complainant alleging
a violation of the statute to bring a civil suit
pursuant to section 398-25, HRS, within ninety days
after receipt of the notice.

27-26
§12-27-32
(b) 	At any time after the filing of a complaint
with the department, a complainant may request, in
writing, that the department issue a notice of right
to sue.
(c) 	Upon a request made under subsection (b),
the department may issue a notice of right to sue,
provided that the department has not:
(1) 	Previously issued a notice;
(2) 	Entered into a conciliation agreement to
which the complainant is a party; or
(3) 	Filed a civil action.
(d) 	The department may issue a notice of right
to sue:
(1) 	Upon dismissal of a complaint pursuant to
sections 12-27-24 and 12-27-25; or
(2) 	Where the department has entered into a
conciliation agreement to which the
complainant is not a party, pursuant to
subsection 12-27-28(b).
[Eff 2/3/05 	] 	(Auth: 	HRS §398-11)
(Imp: 	HRS §§398-9, 398-25, 398-27)
§12-27-32 	Appeal. 	(a) 	An employer may appeal a
demand and order issued by the department pursuant to
section 12-27-29.
(b) 	The appeal must be in writing and must be
filed with the department no later than twenty days
after the date of the demand and order.
(c) 	A hearing on the appeal shall be scheduled
in accordance with section 398-24, HRS, and
subchapter 3. 	[Eff 2/3/05 	] 	(Auth: 	HRS
§398-11) (Imp: 	HRS §398-24)
§§12-27-33 to 12-27-39 (Reserved)

27-27
§12-27-40
SUBCHAPTER 3
HEARING OF APPEAL
§12-27-40 	Definitions. 	As used in this
subchapter:
"Party" or "parties" means the employer or
employer representative, the department, or both.
[Eff 2/3/05 	] (Auth: 	§398-11) (Imp: 	§398-24)
§12-27-41 	Prehearing conference. 	(a) 	At any
time after the filing of an appeal by the employer,
but prior to a hearing, the hearings officer may hold
a prehearing conference with the parties.
(b) 	Any matter not raised at the prehearing
conference shall not be allowed during the hearing.
Matters to be discussed at the prehearing conference
may include, but are not limited to, the following:
(1) 	A discussion of the issues raised by the
department and the explanations and defenses
to be presented by the parties at the
hearing;
(2) 	The necessity or desirability of amendments
to the pleadings;
(3) 	The possibility of obtaining stipulations
which will avoid unnecessary proof;
(4) 	The possibility of a settlement between the
parties; and
(5) 	Other matters that may aid in the
disposition of the case.
(c) 	If the parties agree to the terms of a
settlement at the prehearing conference, the
settlement shall be reduced to writing, signed by the
parties, and approved by the hearings officer. 	If
approved, the case will be dismissed without a finding
on the merits of the complaint and a copy of the final
prehearing settlement shall be sent by mail to the
complainant and the employer.
(d) 	A prehearing settlement shall not affect the
processing of any other case, including, but not
limited to, complaints in which the allegations are

27-28
§12-27-43
like or related to the individual allegations settled.
[Eff 2/3/05 	] (Auth: 	HRS §398-11) (Imp: 	HRS
§398-24)
§12-27-42 	Hearing. 	(a) 	Any hearing under this
subchapter shall be held in accordance with chapter
91, HRS.
(b) 	All parties shall be given written notice of
hearing by registered or certified mail with return
receipt requested at least fifteen days before the
hearing.
(c) 	The parties shall be present at the hearing,
and shall be allowed to call, examine, and cross-
examine witnesses, and introduce papers, documents, or
other evidence, in person or by counsel.
(d) 	At the discretion of the hearings officer,
any other person may be allowed to participate, in
person or by counsel, for the purposes and to the
extent that the hearings officer shall determine.
(e) 	Witnesses at the hearing shall be examined
orally, under oath or affirmation, and a record of the
proceedings shall be made by the hearings officer.
The hearings officer or a person designated by the
hearings officer may administer oaths or affirmations
at the hearing.
(f) 	The hearings officer may continue a hearing
from day to day or adjourn it to a later day or to a
different place by announcement thereof at the hearing
or by appropriate notice to all parties. 	The hearings
officer may also continue a hearing upon request of
any party. 	At the discretion of the hearings officer,
a hearing may be reopened.
(g) 	If the employer or employer’s representative
is absent without notice, the hearings officer shall
base the decision on the available evidence.
[Eff 2/3/05 	] 	(Auth: 	HRS §398-11) (Imp: 	HRS
§§91-9.5, 398-9, 398-24)
§12-27-43 	Powers and duties of hearings officer.
(a) 	The hearings officer shall have full power and

27-29
§12-27-43
authority to:
(1) 	Control the procedures of the hearing;
(2) 	Admit or exclude testimony or other
evidence;
(3) 	Rule upon all motions and objections;
(4) 	Call and examine witnesses;
(5) 	Direct the production of papers or other
matter present in the hearings room; and
(6) 	Take other actions that are necessary and
proper for the conduct of the hearing.
(b) 	The hearings officer may issue subpoenas
either at will or upon written request of a party to
the proceeding whenever necessary to compel the
attendance of witnesses and the introduction of books,
records, correspondence, documents, papers, or any
other evidence, which relates to any matter in
question before the hearings officer. 	Where a
subpoena is issued at the instance of a party to the
proceeding other than the hearings officer, the cost
of service and witness and mileage fees shall be borne
by the party at whose request the subpoena is issued.
Witness and mileage fees shall be the same as fees
paid witnesses in the circuit court.
(c) 	The hearings officer shall, whenever
necessary or required during the hearing and on terms
and conditions as the hearings officer may determine,
take or cause to be taken deposition of witnesses
residing within or without the State of Hawaii in the
manner prescribed by law for deposition in civil
actions. 	A request by a party other than the hearings
officer for deposition of witnesses shall be in
writing. 	The cost of any deposition shall be borne by
the party at whose request the deposition was taken.
[Eff 2/3/05 	] (Auth: HRS §398-11) (Imp: HRS
§398-24)
§12-27-44 	Evidence. 	(a) 	Notwithstanding
provisions in section 398-24(f), HRS, the
admissibility of evidence at a hearing shall not be
governed by the laws of evidence, and all relevant
oral or documentary evidence shall be admitted if it

27-30
§12-27-46
is the kind of evidence on which responsible persons
are accustomed to rely in the conduct of serious
affairs. 	Irrelevant, immaterial, or unduly
repetitious material shall not be admitted into
evidence. 	The hearings officer shall give effect to
the rules of privilege recognized by law.
(b) 	Documentary evidence may be received in the
form of copies, provided that, upon request, all other
parties to the proceeding shall be given an
opportunity to compare the copy with the original. 	If
the original is not available, a copy may still be
admissible, but the unavailability of the original and
the reasons therefor shall be considered by the
hearings officer when considering the weight of the
documentary evidence.
(c) 	An employer who files an appeal shall bear
the burden of proof, including the burden of producing
evidence and the burden of persuasion. 	Proof of a
matter shall be by a preponderance of the evidence.
[Eff 2/3/05 	] (Auth: HRS §§91-2, 398-11) (Imp:
HRS §§91-10, 398-24)
§12-27-45 	Decision. 	(a) 	The hearings officer
shall render a written decision which shall include
findings of fact and conclusions of law.
(b) 	A certified copy of the decision shall be
served by personal delivery or by mail upon each
party. 	[Eff 2/3/05 	] (Auth: HRS §398-11) (Imp:
HRS §398-24)
§12-27-46 	Judicial review. 	Any party aggrieved
by the decision of the hearings officer shall be
entitled to judicial review as provided by section
91-14, HRS. 	[Eff 2/3/05 	] (Auth: HRS §398-11)
(Imp: HRS §398-24)