Section 12-27-8 - Unpaid and paid leave(a) Notwithstanding 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: (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)