Hawaii state law provides employment protections for domestic violence victims who need to take time off from work to handle issues related to domestic violence.
Basic info and definitions
What rights does this law give to victims of abuse?
If you or your minor child is the victim of domestic or sexual violence, this law gives you the right to take unpaid days off from work to deal with matters related to the violence. If your employer has 50 or more employees, you can take up to 30 unpaid days off from work in a calendar year. If your employer has less than 50 employees, you can to take up to five days off per calendar year.
Under the law, your “minor child” not only includes your biological or adopted child but also your foster child, step-child, or legal ward who is under age 18.2
1 H.R.S. § 378-72(a)
2 H.R.S. § 378-71
What is considered to be "domestic or sexual violence" under the law?
The law protects victims of “domestic or sexual violence.”1 In Hawaii, domestic violence, also known as domestic abuse, means any of the following between family or household members:
- physical harm or the threat of immediate physical harm;
- bodily injury or the threat of immediate bodily injury;
- assault or the threat of an immediate assault;
- extreme psychological abuse;
- malicious property damage.2
Sexual violence includes:
- any of the seven sexual offenses listed on our Selected Hawaii Statutes page; and
- stalking.3 Stalking means that someone’s conduct towards you has caused you to:
- suffer emotional distress; or
- fear bodily injury, sexual assault, or death to you or someone close to you.3
A family or household member includes:
- your current or former spouse;
- your current or former reciprocal beneficiary,4 which is someone who you have significant personal, emotional, and economic relationships with, but are prohibited from legally marrying;5
- someone with whom you have a child in common;
- your parent;
- your child;
- someone related to you by blood or marriage;
- someone with whom you live/lived (Note: This does not include adults who lived together as roommates or who were cohabitants only for economic reasons or due to a lease); and
- someone who you are dating or used to date.4
1 H.R.S. § 378-72(a)
2 H.R.S. § 586-1
3 H.R.S. § 378-71
4 H.R.S. § 586-1
5 H.R.S. § 572C-2
What legal or medical actions, specifically, can I use the time off from work to do?
If it is related to domestic or sexual violence suffered by you or your minor child, your employer must let you take off time from work to do any of the following things:
- seek medical attention for, or recover from, a physical or psychological injury caused by the domestic or sexual violence;
- get services from a victim services organization;
- get psychological or other counseling;
- temporarily or permanently relocate;
- take legal action in a case related to, or resulting from, the domestic or sexual violence;
- take actions to improve the physical, psychological, or economic health or safety of you or your minor child; or
- take actions to improve the safety of people with whom you associate or work.1
1 H.R.S. § 378-72(a)
How the days off relate to your salary and your vacation days
Can I use the days guaranteed to me under the law instead of using my vacation days or sick days?
Before you can use the days off that are guaranteed to you under the law, you will first have to use up all paid or unpaid leave that you are entitled to:
- as part of your employee benefits;
- as part of a collective bargaining agreement; or
- under any federal, state, or county law.1
However, your employer does not have to allow you to take more than the maximum amount of days off guaranteed to you under the law, even if you are using the other types of paid or unpaid leave.1
1 H.R.S. § 378-73
Does my employer have to pay me for the time that I take off?
Unless you are taking paid leave days that you already have (such as sick leave) in order to handle issues related to domestic or sexual violence, your employer does not have to pay you for the leave guaranteed to you under the law. The “victim leave,” as it is called, is unpaid leave.1
1 H.R.S. § 378-72(a)
What you must provide to your employer
How much notice do I have to give my employer before taking time off?
Generally, you must give your employer “reasonable notice” that you plan to take time off from work to deal with a situation involving domestic or sexual violence to you or your child.1 For example, if you find out on a Tuesday that you have to go to court on Friday afternoon to testify against your abuser, you should tell your employer on Tuesday, or as soon as possible, that you will need Friday off – don’t wait until Friday morning.
However, there is an exception to the “reasonable notice” requirement if it is not possible to give notice to your employer due to immediate or sudden danger to yourself or your minor child.1
Note: It might be a good idea to ask your employer in writing for the time off to deal with domestic or sexual violence issues and to keep a copy of the letter. This way, if the employer denies you the time off, you have some proof that you asked for it in case you decide to bring legal action against the employer for violating the law.
1 H.R.S. § 378-72(f)
What documentation (written proof) do I have to give my employer if I want to take time off?
You only have to give your employer documentation (written proof) of the abuse if your employer requests the documentation.
If you are seeking leave for medical treatment, your employer may request that you provide a certificate from a health care provider estimating the number of days necessary and the approximate start date and end date. Before you may return to the office after medical leave, an employer may request a medical certificate from your health care provider stating your condition and approving your return to work.1
If you take five days or less for non-medical reasons, your employer may ask for a signed statement that you or your minor child is a victim of domestic or sexual violence and the leave is for one of the reasons listed in What legal or medical actions, specifically, can I use the time off from work to do?
If the leave is more than five days in a calendar year for a non-medical reason, your employer may ask for a signed, written statement from a victim services organization, attorney, advocate, or a medical professional that has provided you or your minor child assistance. A police or court record about the domestic or sexual violence is also sufficient.2
If your employer does require certification of your leave, your absence will not be excused until you provide this documentation with your employer.3 Also, while you are on leave, your employer may require that you check in with him/her at least once a week to confirm that you intend to return to work.4
1 H.R.S. § 378-72(c)
2 H.R.S. § 378-72(d)
3 H.R.S. § 378-72(e)
4 H.R.S. § 378-72(g)
What your employer can and cannot do
Can my employer harass me or tell other co-workers about my situation?
The law requires that your employer keep your domestic or sexual violence situation strictly confidential – this includes any documents that you give to your employer, any statements that you make to him/her, and the fact that you or your child is a victim.1 For example, your employer cannot tell your co-workers, your clients, or other employers that you took time off from work because of a domestic or sexual violence issue. The employer can only discuss your domestic or sexual violence situation if:
- you (as the employee) request it;
- you consent to it;
- it is ordered by a court or administrative agency; or
- it is required by federal or state law.1
1 H.R.S. § 378-72(i)
Can I be moved to a lower position or fired when I return to work after taking time off?
When you return to work, your employer cannot fire you or put you in a lower-ranked position (demote you) because you asked for time off. Under the law, you must be placed in your original job or in a position of similar (comparable) status and pay.1
1 H.R.S. § 378-72(h)
What actions can I take if my employer violates this law?
If you are entitled to unpaid leave under the law described above, and your employer refuses, you can sue your employer in a civil action. You can ask the court to allow you the protected leave and to order that your employer pay your attorney’s fees for the lawsuit.1
Also, there are additional protections for someone who gets a subpoena or summons to testify in a civil or criminal case court case, such as a domestic violence case. The law says that an employer cannot fire you, threaten to fire you, or otherwise coerce you because you testify in court in response to a summons. If your employer fires or suspends you for testifying, you can sue the employer to get your job back, for up to six weeks of lost wages, and for your attorney’s fees if you win the case. However, the legal action must be filed within 90 days from the firing or suspension date. The employer may also be arrested and charged with a “petty misdemeanor” crime as well.2
1 H.R.S. § 378-72(j)
2 H.R.S. § 621-10.5