Paid Family Medical Leave in New Hampshire

Brian J. Bouchard and Andrea Chatfield
·5 min read

New Hampshire is a first-in-the-nation kind of state.  With the primary now in doubt, New Hampshire’s first-in-the-nation family medical insurance program has made its debut.  Open enrollment for the program—known as NH PFMLI—began on Dec. 1, 2022 for employers and on Jan. 1, 2023 for individuals. Employers can enroll at any time. The annual enrollment period for individual plans will end on March 2, 2023.  Though the program is still in its infancy, Vermont recently announced plans to implement a similar paid leave insurance program there.  NH PFMLI is available to New Hampshire-based employers, and only for their employees who work in the State. Here are the particulars of New Hampshire’s program.

Program Benefits and Leave: NH PFMLI provides partial wage replacement to participating New Hampshire workers for “family and medical leave.”  This term has been defined to mean:

  • Birth, adoption, or foster placement of a child in the last 12 months;

  • Serious health condition of a family member;

  • A qualifying exigency for foreign deployment in the armed services or to care for a service member with a serious condition or illness.

Curiously, the statute does not define “family and medical leave” as including an employee’s own serious health condition for state employees, but it is included in the statutory framework for PFLMI plans available for purchase.  Participating employees will receive 60% of their average weekly wage for six or 12 weeks, depending on the insurance plan purchased.  Wage replacement is capped, however, at Social Security taxable wage maximum, which for 2023 is $160,200.  Like STD and other insurance programs, employees file for wage replacement through their insurance provider, not their employer.

Voluntary participation: Employer participation in the program is entirely voluntary.  But for employers who elect to participate, New Hampshire is offering a tax credit against the NH Business Enterprise Tax if the employer sponsors a plan through the state’s designated provider, MetLife, and pays any portion of the premiums.  Since participating employers may split the cost of premiums with their employees along any ratio, NH PFMLI creates added flexibility for employers seeking to provide paid family and medical leave benefits.

Special rules for larger employers.  The NH FMLI imposes special rules for employers with a total of 50 or more employees no matter where they are located.  First, NH RSA 275:37-d provides job protection, including restoration and anti-retaliation provisions, for any employee who receives wage replacement leave under an employer-sponsored plan.  Second, employers with 50 or more employees must arrange for employees participating under an individual plan to pay the insurance premiums via payroll deduction. 

Employees can purchase individual coverage.  Another unique feature of NH PFMLI is the ability of qualified employees to purchase their own individual insurance coverage. This feature is available to New Hampshire employees who work for New Hampshire employers that do not sponsor a NH PFMLI group plan and do not offer equivalent benefits.

Employees may only purchase a six week plan and will be subject to a one-time seven month waiting period. Individuals will have an annual 60 day enrollment period (Jan. 1 to March 2). Pursuant to the law, premiums for individual plans are capped at $5 per week.

Individual plans v. employer-sponsored group plans.  Many employers are taking a wait-and-see approach to NH PMFLI and are weighing whether individual plans are preferable to group plans.  Employers do not pay the cost of individual coverage, but they will not be able to qualify for any tax credits. Large employers will still have to implement a payroll deduction process with individual plans, and all employers will still have to cooperate with MetLife’s requests for information when an employee purchases individual coverage and files a benefit claim.

If an employer sponsors a group PFMLI plan, the employer can run its paid leave concurrently with PFMLI, and PFMLI benefits can offset the employer’s paid leave benefit.  However, employers cannot do the same under an individual plan.  Basically, an employee with individual coverage can stack time off using their PFMLI benefits on top of an employer’s paid leave benefit. For example, an employee who purchases individual coverage and has a baby will be able to use whatever paid maternity or family leave offered by the employer, and once that leave is exhausted, can then take an additional 6 weeks of leave and benefits under their individual PFMLI plan for child bonding. The catch is that leave taken under an individual PFMLI plan is not job-protected under RSA 275:37-d.  Depending on how one reads that statute, however, employers may nevertheless be prohibited from discriminating or retaliating against an employee for using their PFMLI benefits under an individual plan, which may indirectly provide some job protection benefits.

Granite State PFMLI and FMLA.  While NH PFMLI plans (both individual and group) are helpful to align with unpaid time under FMLA, there are times when PFMLI benefits exceed what is required under the FMLA. For example:

  • Leave to care for a family member under the NH PFMLI goes beyond child, parent and spouse (which is what the FMLA covers) to include grandparents of the employee, as well as domestic partners and spouses of the employee or the employee’s child.

  • Under the FMLA, intermittent leave cannot be taken for bonding leaves after a child’s birth or adoption but can be taken under the NH PFMLI.

  • The FMLA does not have a seven day elimination period; PFMLI benefits begin after the elimination period, so PFMLI benefits could extend beyond FMLA 12 weeks.

  • NH PFMLI covers employees who have worked less than 12 months for an employer and/or are not within a 75 mile radius of 50 or more employees of the employer, so these employees would be entitled to PFMLI benefits but not FMLA.

NH PFMLI is an innovative approach to paid family and medical leave and is completely voluntary for New Hampshire employers.  However, it has complicated decision points for employers.  Enmeshed in any decision related to NH PFMLI are complex and layered questions involving the differences between FMLA rights and NH PFMLI rights, the difference between group plans and individual plans, and what job-protection benefits RSA 275:37-d actually provides.

Brian J. Bouchard
Brian J. Bouchard

Brian J. Bouchard is labor and employment attorney with Sheehan Phinney Bass & Green PA in Portsmouth, New Hampshire. You can reach him at bbouchard@sheehan.com. 

Andrea Chatfield
Andrea Chatfield

Andrea Chatfield is a labor and employment attorney with Sheehan Phinney Bass & Green PA who regularly represents New Hampshire and Massachusetts employers. You can reach her at achatfield@sheehan.com.

This article originally appeared on Portsmouth Herald: Paid Family Medical Leave in New Hampshire