Employment Law Journal

Large employers restricted from firing or disciplining employees who use sick leave

By Bruce D. Voss

Large Hawaii employers who have collective bargaining agreements are now prohibited from firing employees because they use accrued sick leave.

A law passed by the 2011 Hawaii State Legislature states it is “unlawful for an employer or labor organization to bar or discharge from employment, withhold pay from, or demote an employee because the employees uses accrued and available sick leave.” The new law currently applies only to employers who have a collective bargaining agreement and employ 100 or more employees, but future legislatures may consider expanding the law to all employers.

Hawaii labor unions strongly supported the bill, claiming that some employers were intimidating employees from using their sick leave. Several large employers opposed the bill, contending it restricted their right to manage sick leave abuse and punished companies with generous sick leave benefits. The law includes only one, limited protection for employers: “After an employee uses three or more consecutive days of sick leave, an employer or labor organization may require the employee to provide written verification from a physician indicating the employee was ill when the sick leave was used.”

Given the obvious potential for abuse of the new law-not to mention its use as a weapon in wrongful termination litigation-affected Hawaii employers should re-evaluate their existing vacation and sick leave policies, and consider whether it makes more sense to simply implement a Paid Time Off (“PTO”) policy, as many companies have done in recent years.

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