HR REPORT: Employment Law Hotline: Maternity Leave

Drummond Woodsum partners with the New Hampshire Municipal Association to provide a free Employment Law Hotline service, which provides general employment law advice to NHMA members.  We receive a number of recurring inquiries through the hotline.  The Q&A below is part of a running series in which we highlight frequently asked questions.

Question: The Town hired an employee five (5) months ago who is now asking for time off due to pregnancy.  The Town policy states that an employee has to work for the Town for 12 months to qualify for FMLA.  Does that mean that this employee has no access to protected leave after they exhaust their limited sick leave accrual?

Answer: While this employee likely does not qualify for protected leave under the federal Family and Medical Leave Act (“FMLA”), they may still be entitled to protected leave under New Hampshire’s maternity leave statute, RSA 354-A:7, VI(b).

First, the Town’s policy limiting FMLA is consistent with the law.  While all public employers are “covered” employers and, therefore, must comply with the FMLA, only certain public employees are “eligible” to take protected FMLA leave.  To be eligible for FMLA benefits and protections, an employee must: (1) have worked for the employer for at least 12 months over a seven (7) year look back period; (2) have actually worked 1,250 hours for the employer within 12 months of the request for leave; and (3) work at a location within 75 miles of at least 50 other employees.  Additionally, to the extent an employee meets the first three eligibility criteria, to continue to be eligible, the employee also must not have already exhausted their allotment of FMLA leave (generally 12 weeks).

In order to definitively determine whether the hypothetical recent hire in this question is eligible for FMLA, you would need to determine whether:

  • They had previously worked for the Town, and, if so, whether, in the aggregate, the employee had worked for at least 12 months over the prior 7 years. If the answer is no, the employee is not eligible for FMLA leave.
  • If they did have 12 total months of employment with the Town during the seven (7) year lookback period (for example, a seasonal recreation employee who works 2 months each year), the focus then shifts to whether they had actually worked at least 1,250 hours for the Town within the prior 12 consecutive months. If the answer is no, the employee is not eligible for FMLA leave.

Additionally, the Town will need to determine whether the employee works within 75 miles of at least 50 other employees, which is determined by counting names on the payroll (including full-time, part-time, casual, and call employees).  If the answer is no, then no Town employee would be eligible for federal FMLA leave.

Even if the employee is not eligible for FMLA leave, they are likely eligible for leave under the New Hampshire maternity leave law.  The New Hampshire Law Against Discrimination, RSA 354-A:7, VI(b) entitles employees to “take leave of absence for the period of temporary physical disability resulting from pregnancy, childbirth or related medical conditions.” Employees who take advantage of this maternity leave provision are entitled to be returned to their original job or a comparable position when they are “physically able to return to work . . . unless business necessity makes this impossible or unreasonable.”  The statute further specifies that “[f]or all other employment related purposes, including receipt of benefits under fringe benefit programs, pregnancy, childbirth, and related medical conditions shall be considered temporary disabilities, and a female employee affected by pregnancy, childbirth, or related medical conditions shall be treated in the same manner as any employee affected by any other temporary disability.”  RSA 354-A:7, VI(c)

The state maternity leave law applies to all employers with six (6) or more employees.  Unlike the FMLA, there is no minimum period of employment required before an individual is eligible to take protected leave.   There is also no limitation of the duration of the leave, other than the “period of physical disability.”  While maternity leave typically lasts 6-8 weeks, employees may take leave for as long as their health provider determines that they are physically disabled.  In order to determine if the employee’s pregnancy has become a disabling condition, an employer may (but is not required to) request documentation from the employee’s medical provider stating that the employee is physically disabled due to pregnancy.   Many employers forego requesting medical information for leaves requested near the end of a “normal” pregnancy, but may choose to request documentation if leave is sought early in the pregnancy or for a period of time post-childbirth.

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.