New State Law Sharply Expands FMLA For New Hampshire Schools

On September 26, 2019. Governor Sununu signed into law a State budget (HB4) for the 2020-2021 fiscal year. Buried in the budget law is a provision that will increase the number of school district employees eligible for family and medical leave.

School districts already understand their obligations under the federal Family and Medical Leave Act (FMLA). In brief, that law requires districts to provide employees with unpaid, protected leave from work if they request leave for a qualifying reason and if they are eligible, i.e., if they have worked for the district for at least 12 months, have worked at least 1,250 hours immediately preceding a request for leave, and if the district employs at least 50 employees within 75 miles of the requesting employee. The FMLA creates a rebuttable presumption that full time instructional personnel are considered to satisfy the 1250 hour requirement.

The newly enacted Stated budget added a new subsection to New Hampshire’s education law (RSA 189:73) which states:

Family and Medical Leave Coverage

189:73 Family and Medical Leave Coverage. 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 shall be eligible for family and medical leave under the same terms and conditions as leave provided to eligible employees under the federal Family and Medical Leave Act of 1993 (Pub. L.103- 3),29 U.S.C. section 2611, et seq., as amended

This provision essentially creates a State level “mini-FMLA” that is uniquely applicable to public schools. Private schools, municipalities, and private sector employers are not subject to this obligation. This “mini-FMLA” expands on the federal FMLA by lowering the minimum hours threshold for eligibility for both teachers and non-instructional personnel. Employees who work as few as 17.5 hours per week (annualized) will now be eligible for FMLA benefits. It also appears that RSA 189:73 does not require that the district employ at least 50 employees to have eligible employees.

Although the budget bill was not signed until the end of last month, the effective date of this new subsection is retroactive to June 30, 2019. There are currently no regulations to help guide districts as they navigate the law. Additionally, unlike many statutes, RSA 189:73 does not identify the state agency generally charged with developing a set of regulations. Neither the New Hampshire Department of Education nor the New Hampshire Department of Labor has publicly indicated that they are working on rules or regulations related to this new obligation.

The enforceability of the new law may be subject to legal challenge. First, while federal FMLA is an unpaid leave benefit, it nevertheless requires employers to continue to pay for employer-sponsored health insurance. Therefore, RSA 189:73 could be challenged as an unfunded mandate. Second, it is unclear how the new law will be enforced. The statute does not designate which state agency is responsible for enforcement. Further, the statute does not provide for a private right of action that would allow individual employees to pursue court actions against their employer.

Despite the uncertainties, it would be prudent for superintendents to make their school boards aware of this new law and to discuss the potential impact on school district budgets, policies, employee benefit programs, and employment contracts. Districts should consider adopting internal procedures to ensure that leave provided under RSA 189:73 to an employee that does not initially meet the FMLA criteria does not subsequently interfere with leave mandated under the FMLA if that employees subsequently meets the FMLA’s criteria. We recommend that districts carefully review employee requests for leave to see if they implicate RSA 189:73 and be sure to address such requests consistently. We are available to assist districts with questions regarding compliance with the FMLA and “mini-FMLA”.

Over time, the existence of this new law and its application will become better understood. This will likely result in legal challenges, amendments, and new regulations. We will provide updates regarding this law as clear guidance becomes available. However, labor unions are unlikely to wait for these developments before pressing districts to extend these new rights to employees, adding yet another wrinkle to future collective bargaining.

Should you have questions please do not hesitate to contact any member of the School & Education practice group.