FMLA: New Hampshire
Federal law and guidance on this subject should be reviewed together with this section.
Author: Susan A. P. Woodhouse, Littler
- New Hampshire does not have a state family and medical leave law applicable to private employers. See Family and Medical Leave.
- New Hampshire requires some employers to provide pregnancy disability leave. See Pregnancy Disability Leave.
- Other types of leave may be available to New Hampshire employees - some required by federal, state or local law, and some provided by company policy, as well as several sources of income replacement. See Interaction of Leave Laws.
Family and Medical Leave
New Hampshire does not have a state family and medical leave law applicable to private employers. However, a New Hampshire employer with 50 or more employees is likely required to adhere to the federal Family and Medical Leave Act (FMLA).
A New Hampshire employer should be wary of potential liability for FMLA retaliation under the cat's paw theory, under which an employer can be held liable for employment discrimination based on the discriminatory animus of a lower-level manager or supervisor who influenced, but did not make, the final employment decision. The 1st Circuit Court of Appeals (covering Maine, Massachusetts, New Hampshire and Rhode Island) extended the cat's paw theory to an FMLA retaliation claim in Ameen v. Amphenol Printed Circuits, Inc., +777 F.3d 63 (2015). See FMLA: Federal.
The Supreme Court ruled that the 14th Amendment requires a state to do the following:
- License a marriage between two people of the same sex; and
- Recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out of state.
Obergefell v. Hodges, +2015 U.S. LEXIS 4250 (U.S. June 26, 2015).
Same-sex marriage is legal nationwide, and couples lawfully married in any state, including New Hampshire, are entitled to FMLA spousal leave benefits.
In New Hampshire, parties to a civil union entered into in another state are entitled to the same rights provided for under state law that apply to parties who are married. +N.H. Rev. Stat. § 457-45. Because New Hampshire recognizes civil unions legally contracted outside of New Hampshire and such unions are provided the same rights under state law as parties to a marriage, such unions could arguably be treated as marriages under the federal FMLA; therefore, employees in civil unions could take FMLA leave to care for their civil union partners.
A New Hampshire employer should be careful if it seeks to confirm an employee's same-sex spousal relationship to ensure it does not discriminate in any way.
While the FMLA allows an employer to confirm a family relationship, the employer's practices to confirm such relationships should be the same for employees in same-sex marriages as those in opposite-sex marriages (e.g., if an employer does not ask heterosexual employees for marriage licenses it should be careful about asking homosexual employees for such documentation).
Apart from FMLA considerations, employers with employees residing in New Hampshire should look at existing policies that provide for leave based on spousal relationships, such as non-FMLA leave, bereavement leave or military leave. Policy language (such as how a spouse is defined) may need to be revised. New Hampshire law requires that terms and definitions relating to marital or familial relationships, such as spouse, family, marriage, immediate family, dependent, next of kin, man, woman, groom, bride, husband, wife, widow or widower, must be construed as gender neutral for all purposes throughout New Hampshire law. +N.H. Rev. Stat. Ann. § 21:3.
Pregnancy Disability Leave
New Hampshire requires an employer with six or more employees to permit employees to take a leave of absence for the period of temporary disability resulting from pregnancy, childbirth or related medical conditions.
An employer should consider including a pregnancy disability leave policy in its handbook to educate employees, and supervisors, about the availability of pregnancy disability leave and to demonstrate compliance with New Hampshire law.
There is no set period of time for leave. When an employee is physically able to return to work, the employee must be restored to their original job or a comparable position unless business necessity makes it impossible or unreasonable.
For all other purposes, employees affected by pregnancy, childbirth or related medical conditions must be treated the same as employees affected by other temporary disabilities.
If an employee is eligible for leave under the federal Family and Medical Leave Act (FMLA) and/or New Hampshire law, the FMLA and/or New Hampshire pregnancy disability leave will run concurrently.
Interaction of Leave Laws
Other types of leave may be available to New Hampshire employees - some required by federal, state or local law, and some provided by company policy, as well as several sources of income replacement. See Other Leaves: New Hampshire. While some of these laws can run at the same time, others cannot.
Remain alert to the various types of leave available and take care to track an employee's leave of absence, including:
- The date the leave begins;
- The type of leave; and
- The expected return date.
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