Federal & State Regulations | FMLA - New Hampshire | J. J. Keller® Compliance Network

Summary of differences between federal and state regulations

In addition to the federal FMLA, employers in New Hampshire need to be aware of state leave provisions, such as maternity leave and crime victim leave.

Maternity leave

Somewhat like the FMLA which covers nearly all employers, New Hampshire’s maternity leave applies to all employers with more than six employees.

Employee eligibility

To be eligible for maternity leave benefits, an individual must be a full or part-time employee of a covered employer. Unlike the FMLA, an employee does not need to work a specified number of months or hours to be eligible for leave under New Hampshire’s provisions.

Leave entitlement

New Hampshire does not set a specific period of time for maternity leave. Leave is based on the amount of time a woman is disabled as determined by a physician. An employee can work until she is physically unable to perform her job.

Type of leave

An eligible female employee may take maternity leave due to pregnancy, childbirth, or related medical conditions. This includes temporary leave in the early stages of the pregnancy due to morning sickness. The employee is allowed to return to work until the end of her pregnancy.

Also, an employer is not required to grant leave for the purpose of childcare and bonding.

Maintenance of health benefits

If an employer provides health insurance coverage for temporary disabilities, coverage must include pregnancy, childbirth, and related medical conditions. If the policy excludes pregnancy, the employer must be responsible for all pregnancy-related costs equal to costs covered by the policy for other temporary physical disabilities. And the employer must provide the same level of coverage for pregnancy related conditions for dependents of employees. This level of coverage does not have to be as high as employee coverage.

Job restoration

Like the FMLA, New Hampshire requires that when an employee is physically able to return to work, she must be restored to her original or comparable job unless business necessity makes this impossible or unreasonable.

An employee cannot be laid off or fired while pregnant or on leave for reasons related to her temporary disability. However, the same employee is not immune from a general and legitimate layoff of employees for performance requirements.

Notice

Unlike the FMLA, New Hampshire does not mandate any notice requirements.

Crime victim leave

The state’s crime victim leave applies to employers with 25 or more employees.

Employers must allow an employee who is a victim of a crime to leave work so that the employee may attend court, or other legal or investigative proceedings associated with the prosecution of the crime.

The time off need not be paid. Rather, the employee may elect to use, or the employer may require the employee to use accrued paid time off.

Employers may not discharge an employee who is a victim of a crime because the employee exercises his or her right to leave work.

Employees must not lose seniority while on the leave.

Employees must provide you with a copy of the notice of each scheduled hearing, conference, or meeting that the employee was given by the court or agency responsible for providing notice to the employee. Related documents or records must be kept confidential.

Employers may limit the leave if it creates an undue hardship to the business. For this, “undue hardship” means a significant difficulty and expense to a business, and includes the consideration of the size of the employer’s business, the employee’s position and role within the business, and the employer’s need for the employee.

Voluntary paid family leave

The Granite State Paid Family Leave Plan would allow private employers with 50 or more employees, and non-state public employers to voluntarily obtain advantageously priced Family and Medical Leave Insurance (FMLI) for wage replacement benefits.

The program began 1/1/2023. If employers take advantage of this option, employees may take up to six weeks of paid leave per year for the following reasons:

Because of the birth of a child of the employee, within the past 12 months; or within the past 12 months;
Because of the placement of a child with the employee for adoption or fostering within the past 12 months;
Because of a serious health condition of a family member; or
Because of any qualifying exigency arising from foreign deployment with the Armed Forces, or
To care for a service member with a serious injury or illness as permitted under the federal FMLA.

Family members include a child; a child’s biological, adoptive, step- or foster parent; a child's spouse or domestic partner, a biological, adoptive, step- or foster grandparent; or a spouse or domestic partner.

Not included is leave for the employee's own condition.

Employees could take the leave in any increment.

Eligible employees would receive 60% of their average weekly wage. Employers could take a tax credit covering 500 percent of the premium.

If employers provide the voluntary paid leave, they must make payroll deductions and remit the employee paid premiums to the state.

Employers would need to continue of health insurance coverage during leave.

Employees would be protected from discrimination and retaliation related to the leave.

Employees of employers that choose not to participate in the program may enroll through a purchasing pool during a 60-day annual open-enrollment window. Coverage will be subject to a seven-month waiting period for benefits eligibility and a one-week elimination period for claim payments to begin. Employees would pay weekly premiums of up to $5.

Emergency responder leave

When the governor or the general court declares a state of emergency, a member of a fire department, rescue squad, or emergency medical services agency who is called into service of the state or a political subdivision has the right to take leave without pay to respond. Employers may not require an employee to use or exhaust vacation or other accrued leave for emergency service. However, the employee may choose to take such leave.

A firefighter, rescue squad member, or emergency medical services member must be called into service when requested in writing by the director of emergency services, communications, and management or by the head of a local organization for emergency management. The request must be directed to the chief of the member's fire department, rescue squad, or emergency medical services agency and a copy must be provided to the member's employer.

Employers may certify that the employee is essential to the employer's own emergency or disaster relief activities. Such certification must exempt an employee from the provisions allowing leave.

Public school employee "mini" FMLA

A school district employee who has been employed by the school district for at least 12 months and who has worked at least 900 hours in the previous 12-month period is eligible for family and medical leave under the same terms and conditions as leave provided to eligible employees under the federal FMLA, as amended.