Published in NH Business Review (4/13/2018)
One thing is certain: employees will become pregnant and will need time off. With that certainty in mind and coupled with the fact that the number of pregnancy leave claims has not changed much for at least the last 9 years, employers need a clear understanding of NH’s pregnancy leave law requirements.
NH law (RSA 354-A:7, VI) requires that employers with six or more full and part-time employees provide pregnancy leave to female employees for the period of time that they are physically disabled (with doctor’s certification) due to pregnancy, childbirth or a related medical condition. The employee may work as long as she is physically able to do so prior to the birth. However, for the length of time that she does become disabled by the condition or related medical condition, she is entitled to pregnancy leave and to return to the same or comparable position. In other words, there is not set period of time for pregnancy leave.
For example, if the employee develops pre-eclampsia during her pregnancy and is disabled by that condition (as validated by her doctor), then her employer must give her that time off. She might be able to return to work after the condition has gone and would be entitled to return to the same or comparable position. Likewise, if the employee has severe morning sickness for the first 8 weeks of her pregnancy, she would be entitled to pregnancy leave for that period of time (or hours per day) and to return to work, if able. Consider this – an employee has a natural childbirth with no complications and her doctor says that she is able to return to work 2 days later because she is not physically disabled due to childbirth. In those circumstances, the employee must return to work 2 days after giving birth (or take other leave time, if available). Please note that if the employer has 50 or more employees and the employee is eligible for federal FMLA leave, then a 12 week unpaid leave will be the relevant time period.
While out on pregnancy leave, the employer is not required to pay the female employee. However, if the business has paid other employees while they were absent due to a temporary disability, then it must pay the female employee who is out on pregnancy leave. For example, if in the past, the business allowed an employee to take a paid medical leave of absence due to recuperation after a surgery, then the employee out on pregnancy leave must also be paid. The key here is that the female employee who is out on pregnancy leave must be treated the same way in the terms and conditions of her work as any other employee out of work for a temporary disability. Employers might consider enrolling in a short term disability policy so that some income could be provided to the female employee, and other employees, out because of a temporary disability. If the handbook and/or leave policy states that employees who are out on a temporary disability must use accrued vacation and/or sick leave, then the same can be required of the female employee out on pregnancy leave. Another helpful handbook provision is one that requires an employee who is out on a sick leave to periodically update the business as to when he/she anticipates returning to work so that the business can plan for the resources it needs.
While out on pregnancy leave, the business can hire someone to fill the employee’s position. However, the same position or a comparable position must be made available to the employee when she returns from pregnancy leave. The exception to this rule is if business necessity makes this impossible or unreasonable. Before making that determination, a business is well advised to consult with employment counsel as that decision could result in liability to the business. Likewise, the female employee cannot be laid off or fired while pregnant and/or on pregnancy leave unless the business can show that it already had plans in place to conduct a company lay off.
Remember that pregnancy leave is protected leave when a female employee is disabled due to the pregnancy, childbirth or for a related medical reason. It cannot be used for time spent bonding with the baby because that type of leave must be made available to both female and male employees. Childcare leave is not mandated by NH or federal law, but can be provided by policy to both females and males for time spent bonding with their child. The business would set the number of days of childcare leave and whether the leave (or any part of the leave) is paid or unpaid. Before making any decision regarding pregnancy leave, the employer must consider the requirements of the law, its own policies, practices and workplace culture.
Beth Deragon, an attorney in the Employment Law Practice and Litigation Group at the law firm of McLane, Middleton, can be reached at beth.deragon@mclane.com or at (603) 628-1490