HR REPORT: Paid Family Leave in New Hampshire? A Look at the Granite State Paid Family Leave Plan
Employees generally take “family leave” from their jobs when they need time away to care for a sick family member or to care for a newborn child, and “sick leave” or “medical leave” when they are sick themselves. In New Hampshire, employers are not required to provide employees with paid family or sick leave – employees may be entitled to 12 weeks of job-protected family and medical leave under the federal Family and Medical Leave Act (“FMLA”), but that leave is unpaid. (RSA 189:73 also provides a state-level protected family and medical leave benefit for school district employees that largely mirrors the federal Family and Medical Leave Act).
Recently, there has been a push throughout the country for employers to offer paid family and sick leave. Eight states and the District of Columbia now provide paid leave programs. In an effort to get New Hampshire employers to pay employees while they are out on family and/or sick leave, the Governor recently signed into law the “Granite State Paid Family Leave Plan” (“Plan”). The law does not create a traditional paid family and sick leave program under which employers directly fund the cost of the paid leave through payroll. Rather, it provides a mechanism for employers to purchase family and medical leave insurance (“FMLI”) for employees.
The Plan is entirely voluntary for all employers, other than the State, and works like any other insurance plan. An insurance carrier selected by the State will offer FMLI to New Hampshire’s employers, including public employers. Employers will then decide whether they want to opt-in to the insurance plan. If they opt-in, they will have the option to fully fund the premium costs on their employees’ behalf, split the premium costs with employees, or offer the insurance only if the employees elect to fully fund the premium costs themselves. When an employee covered by the Plan later needs to be out of work for a qualifying reason, as outlined below, the insurance carrier will pay the employee 60 percent of their wages for up to 6 weeks of leave.
Importantly, the Plan provides employees who work for employers with at least 50 employees with protected leave. In other words, qualifying employees who work for an employer with at least 50 employees are protected from discrimination or retaliation when they take leave permitted under the Plan and are entitled to be restored to their position or a similar position upon return from leave. Similar to leave under the FMLA, the law requires that employers with at least 50 employees who opt-into the Plan provide qualifying employees with continuation of health insurance coverage on the same terms as active employees for the duration of the qualifying leave.
For employees to qualify for paid leave under the Plan, they must be out of work for one of these reasons:
- The birth of a child of the employee, within the past 12 months;
- The placement of a child with the employee for adoption or fostering within the past 12 months;
- A serious health condition of a family member;
- To care for a spouse, child, or parent who is in the military; or
- Have a personal serious health condition that is unrelated to work, if the employer does not offer short-term disability insurance.
The law defines “serious health condition” as “any illness covered by the federal family and medical leave act” including treatment for addiction and mental health conditions. The FMLA covers illness, injury, impairment, or physical or mental conditions that involve “inpatient care” or “continuing treatment by a health care provider.” As a result, for employees themselves to qualify for paid leave under the Plan for a “serious health condition,” they must demonstrate that their employer does not offer short-term disability insurance and that they are in inpatient care or require continuing treatment by a health care provider as defined by the FMLA.
While the Plan does not specify a tenure requirement (i.e., a minimum number of hours worked or months of employment to be eligible to seek paid leave), the law gives the Commissioner of Administrative Services the ability to implement a tenure requirement and a waiting period. No regulations related to the law have yet been established. Therefore, while much of the Plan appears to align with the federal FMLA, as currently written, it could apply to employees that do not qualify for the FMLA due to lack of actual hours worked or tenure of employment before the need for leave.
The law permits employers who opt-in to the Plan to require that employees take paid family leave concurrently other leave, be it contractual, FMLA, or some other policy-based leave. For example, if an employee of an employer that has opted-in to the Plan is entitled to and takes 12 weeks of unpaid FMLA leave, the first 6 weeks of that leave would run concurrently with FMLI and, therefore, the employee would receive 60% of their wages for those first 6 weeks (assuming the employee qualifies for paid leave under the Plan). At the end of those 6 weeks, the employee will have exhausted their paid leave under the Plan for the year and will have 6 weeks remaining of unpaid FMLA.
Public employers likely have a great deal of time to determine whether they will offer paid leave through the Plan, as the deadline for the to-be selected insurance carrier to start offering insurance is January 1, 2023. Of note, while the law specifies that participating employers will receive a tax credit against the “business enterprise tax,” public employers do not pay that tax, so they will not get a tax credit even if they opt-in to the Plan.
Given the complexity of the law as-written and the need to carefully navigate collective bargaining relationships prior to an opt-in, as well as the expectation that further clarifying rules will be adopted, we recommend employers consult counsel if they have questions about FMLI or before implementing a new paid leave policy consistent with the Plan.
Patrick Landroche is a member of Drummond Woodsum’s Labor and Employment Group. His practice focuses on the representation of private and public employers in all aspects of the employer-employee relationship. This is not a legal document nor is it intended to serve as legal advice or a legal opinion. Drummond Woodsum & MacMahon, P.A. makes no representations that this is a complete or final description or procedure that would ensure legal compliance and does not intend that the reader should rely on it as such. “Copyright 2021 Drummond Woodsum. These materials may not be reproduced without prior written permission.”