Bill Text - HB661 (2010)

Relative to family leave insurance.


Revision: Dec. 10, 2009, midnight

HB 661-FN – AS INTRODUCED

2009 SESSION

09-0744 08/10

HOUSE BILL 661-FN

AN ACT relative to family leave insurance.

SPONSORS: Rep. Gile, Merr 10; Rep. Skinder, Sull 1; Rep. Pilliod, Belk 5; Rep. Moran, Hills 18; Rep. Hamm, Merr 4; Sen. Lasky, Dist 13; Sen. Gilmour, Dist 12

COMMITTEE: Commerce and Consumer Affairs

ANALYSIS

This bill creates a family leave insurance program to allow parents to take time off to care for a newborn or newly placed child or to allow persons to care for a family member with a serious health condition, including a wounded service member.

This bill also establishes the benefit at up to 6 weeks of $250 per week.

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -

Explanation: Matter added to current law appears in bold italics.

Matter removed from current law appears [in brackets and struckthrough.]

Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.

09-0744

08/10

STATE OF NEW HAMPSHIRE

In the Year of Our Lord Two Thousand Nine

AN ACT relative to family leave insurance.

Be it Enacted by the Senate and House of Representatives in General Court convened:

1 New Chapter; Family Leave Insurance. Amend RSA by inserting after chapter 275-E the following new chapter:

CHAPTER 275-F

FAMILY LEAVE INSURANCE

275-F:1 Findings. The general court finds that, although family leave laws have assisted individuals to balance the demands of the workplace with their family responsibilities, more needs to be done to achieve the goals of parent and child bonding, workforce stability, and economic security. In particular, the general court finds that many individuals do not have access to family leave laws, and those who do may not be in a financial position to take family leave that is unpaid, and that employer-paid benefits meet only a relatively small part of this need. The general court finds it to be in the public interest to establish a program that: (1) Allows parents to care for a newborn or newly placed child; (2) Allows individuals to care for an immediate family member with a serious health condition including a wounded service member; (3) Provides limited and additional income support for a reasonable period while an individual is away from work on family leave; (4) Reduces the impact on state income support programs by increasing an individual’s ability to provide caregiving services for a child while maintaining an employment relationship; and (5) Establishes a wage replacement benefit to be coordinated with existing state and federal family leave laws.

275-F:2 Definitions. In this chapter:

I. “Application year” means the 12-month period beginning on the first day of the calendar week in which an individual files an application for family leave insurance benefits and, thereafter, the 12-month period beginning with the first day of the calendar week in which the individual next files an application for family leave insurance benefits after the expiration of the individual’s last preceding application year.

II. “Calendar quarter” means the same as in RSA 282-A:5.

III. “Child” means a biological or an adopted child.

IV. “Commissioner” means the commissioner of the department of employment security.

V. “Department” means the department of employment security.

VI. “Employer” means:

(a) The same as in RSA 275:4, I; and

(b) The state and its political subdivisions.

VII. “Family leave” means leave:

(a) Because of the birth of a child of the employee and in order to care for the child; or

(b) Because of the placement of a child with the employee for adoption; or

(c) Because of the serious illness of a spouse, child, parent, or partner from a civil union.

(d) To care for a son, daughter, parent, or next of kin who is a wounded service member undergoing medical treatment or therapy in an outpatient status.

VIII. “Family leave insurance benefits” means the benefits payable under RSA 275-F:6 and RSA 275-F:7.

IX. “Federal family and medical leave act” means the federal Family and Medical Leave Act of 1993, 29 U.S.C. Chapter 28.

X. “Qualifying year” means the first 4 of the last 5 completed calendar quarters or the last four completed calendar quarters immediately preceding the first day of the individual’s application year.

XI. “Regularly working” means the average number of hours per workweek that an individual worked in the 2 quarters of the individual’s qualifying year in which total wages were highest.

275-F:3 Family Leave Insurance Program.

I. The department shall establish and administer a family leave insurance program and pay family leave insurance benefits as specified in this chapter.

II. The commissioner shall establish procedures and forms for filing claims for benefits, in accordance with RSA 541-A under this chapter. The department shall notify the employer within 5 business days of a claim being filed under RSA 275-F:4.

III. The department shall use information sharing and integration technology to facilitate the disclosure of relevant information or records by the department, so long as an individual consents to the disclosure as required under RSA 275-F:4, IV.

IV. Information contained in the files and records pertaining to an individual under this chapter shall be confidential and not open to public inspection, other than to public employees in the performance of their official duties. However, the individual or an authorized representative of an individual may review the records or receive specific information from the records on the presentation of the signed authorization of the individual. An employer or the employer’s duly authorized representative may review the records of an individual employed by the employer in connection with a pending claim. At the department’s discretion, other persons may review records when such persons are rendering assistance to the department at any stage of the proceedings on any matter pertaining to the administration of this chapter.

V. The department shall develop and implement an outreach program to ensure that individuals who may be eligible to receive family leave insurance benefits under this chapter are made aware of these benefits. Outreach information shall explain, in an easy to understand format, eligibility requirements, the claims process, weekly benefit amounts, maximum benefits payable, notice requirements, reinstatement and nondiscrimination rights, confidentiality, and coordination of leave under this chapter and other laws, collective bargaining agreements, and employer policies. Outreach information shall be available in English.

275-F:4 Eligibility for Benefits. Beginning October 1, 2011, family leave insurance benefits shall be payable to an individual during a period in which the individual is unable to perform his or her regular or customary work because he or she is on family leave if the individual:

I. Files a claim for benefits in each week in which the individual is on family leave, and as required by rules adopted by the commissioner;

II. Has been employed for at least 1250 hours in employment during the individual’s qualifying year;

III. Establishes an application year. An application year may not be established if the qualifying year includes hours worked before establishment of a previous application year;

IV. Consents to the disclosure of information or records deemed private and confidential under RSA 91-A.

V. Discloses whether or not he or she owes child support obligations.

VI. Documents that he or she has provided the employer from whom family leave is to be taken with written notice of the individual’s intention to take family leave.

275-F:5 Disqualification From Benefits. An individual is disqualified from family leave insurance benefits beginning with the first day of the calendar week, and continuing for the next 52 consecutive weeks, in which the individual willfully made a false statement or misrepresentation regarding a material fact, or willfully failed to report a material fact, to obtain benefits under this chapter.

275-F:6 Duration of Benefits; Payment of Benefits.

I. The maximum number of weeks during which family leave insurance benefits are payable in an application year is 6 weeks. However, benefits are not payable during a waiting period consisting of the first 7 calendar days of family leave taken in an application year, whether the first 7 calendar days of family leave are employer paid or unpaid.

II.(a) The first payment of benefits must be made to an individual within 2 weeks after the claim is filed or the family leave began, whichever is later, and subsequent payments must be made semimonthly thereafter.

(b) The payment of benefits under this chapter shall not be considered a binding determination of the obligations of the department under this chapter. The acceptance of compensation by the individual shall likewise not be considered a binding determination of his or her rights under this chapter. Whenever any payment of benefits under this chapter has been made and timely appeal therefrom has been made where the final decision is that the payment was improper, the individual shall repay it and recoupment may be made from any future payment due to the individual on any claim under this chapter. The commissioner may exercise his or her discretion to waive, in whole or in part, the amount of any such payments where the recovery would be against equity and good conscience.

(c) If an individual dies before he or she receives a payment of benefits, the payment shall be made by the department and distributed consistent with the terms of the decedent’s will or, if the decedent dies intestate.

275-F:7 Amount of Benefits. The amount of family leave insurance benefits shall be determined as follows:

I. The weekly benefit shall be $250 per week for an individual who at the time of beginning family leave was regularly working 35 hours or more per week.

II. If an individual who at the time of beginning family leave was regularly working 35 hours or more per week is on family leave for less than 35 hours but at least 8 hours in a week, the individual’s weekly benefit shall be .025 times the maximum weekly benefit times the number of hours of family leave taken in the week. Benefits are not payable for less than 8 hours of family leave taken in a week.

III. For an individual who at the time of beginning family leave was regularly working less than 35 hours per week, the department shall calculate a prorated schedule for a weekly benefit amount and a minimum number of hours of family leave that must be taken in a week for benefits to be payable, with the prorated schedule based on the amounts and the calculations specified under paragraphs I and II of this section.

IV. If an individual discloses that he or she owes child support obligations under RSA 275-F:4 and the department determines that the individual is eligible for benefits, the department shall notify the applicable state or local child support enforcement agency and deduct and withhold an amount from benefits.

V. If the Internal Revenue Service determines that family leave insurance benefits under this chapter are subject to federal income tax and an individual elects to have federal income tax deducted and withheld from benefits, the department shall deduct and withhold the amount specified in the federal internal revenue code in a manner consistent with RSA 275-F:8.

275-F:8 Federal Income Tax.

I. If the Internal Revenue Service determines that family leave insurance benefits under this chapter are subject to federal income tax, the department shall advise an individual filing a new claim for family leave insurance benefits, at the time of filing such claim, that:

(a) The Internal Revenue Service has determined that benefits are subject to federal income tax;

(b) Requirements exist pertaining to estimated tax payments;

(c) The individual may elect to have federal income tax deducted and withheld from the individual’s payment of benefits at the amount specified in the federal Internal Revenue Code; and

(d) The individual is permitted to change a previously elected withholding status.

II. Amounts deducted and withheld from benefits must remain in the family leave insurance account until transferred to the federal taxing authority as a payment of income tax.

III. The commissioner shall follow all procedures specified by the federal Internal Revenue Service pertaining to the deducting and withholding of income tax.

275-F:9 Erroneous Payments; Payments Induced by Willful Misrepresentation; Claim Rejected After Payments. If family leave insurance benefits are paid erroneously or as a result of willful misrepresentation, or if a claim for family leave benefits is rejected after benefits are paid, the procedures in RSA 282-A:165 shall apply, except that appeals shall be governed by RSA 275-F:13, penalties shall be paid into the family leave insurance account, and the department shall seek repayment of benefits from the recipient.

275-F:10 Leave and Employment Protection.

I. During a period in which an individual receives family leave insurance benefits or earns waiting period credits under this chapter, the individual is entitled to family leave and, at the established ending date of leave, to be restored to a position of employment with the employer from whom leave was taken.

II. This section applies only to an individual if:

(a) The employer from whom the individual takes family leave employs more than 50 employees; and

(b) The individual has been employed for at least 12 months by that employer, and for at least 1250 hours of service with that employer during the previous 12-month period.

275-F:11 Employment by Same Employer. If spouses or people involved in a civil union established under RSA 457-A who are entitled to leave under this chapter are employed by the same employer, the employer may require that spouses or people involved in a civil union not take such leave concurrently. If one of the spouses or people involved in a civil union is seriously ill and the other spouse or person involved in a civil union is caring for him or her, he or she shall be exempt from the provisions of this section.

275-F:12 Elective Coverage.

I. An employer of individuals not covered by this chapter or a self-employed person, including a sole proprietor, partner, or joint venturer, may elect coverage under this chapter for all individuals in its employ for an initial period of not less than 3 years or a subsequent period of not less than one year immediately following another period of coverage. The employer or self-employed person shall file a notice of election in writing with the commissioner, as required by the department. The election becomes effective on the date of filing the notice.

II. An employer or self-employed person who has elected coverage may withdraw from coverage within 30 days after the end of the 3-year period of coverage, or at such other times as the commissioner may prescribe by rule, by filing written notice with the commissioner, such withdrawal to take effect not sooner than 30 days after filing the notice. Within 5 days of filing written notice of the withdrawal with the commissioner, an employer must provide written notice of the withdrawal to all individuals in the employer’s employ.

275-F:13 Appeals.

I. A person aggrieved by a decision of the department under this chapter may appeal according to RSA 541.

II. If, upon review, the final decision of the department is reversed or modified, the court in its discretion may award reasonable attorneys’ fees and costs to the prevailing party. Attorneys’ fees and costs owed by the department, if any, are payable from the family leave insurance account.

275-F:14 Prohibited Acts; Discrimination; Enforcement. An employer, temporary help company, employment agency, employee organization, or other person may not discharge, expel, or otherwise discriminate against a person because he or she has filed or communicated to the employer an intent to file a claim, a complaint, or an appeal, or has testified or is about to testify or has assisted in any proceeding, under this chapter, at any time, including during the waiting period described in RSA 275-F:6 and the period in which the person receives family leave insurance benefits under this chapter.

275-F:15 Coordination of Leave.

I.(a) Leave taken under this chapter must be taken concurrently with any leave taken under the federal Family and Medical Leave Act.

(b) An employer may require that leave taken under this chapter be taken concurrently or otherwise coordinated with leave allowed under the terms of a collective bargaining agreement or employer policy, as applicable, for the birth or placement of a child. The employer shall give individuals in its employ written notice of this requirement.

II.(a) This chapter shall not diminish an employer’s obligation to comply with a collective bargaining agreement or employer policy, as applicable, that provides greater leave for the birth or placement of a child.

(b) An individual’s right to leave under this chapter may not be diminished by a collective bargaining agreement entered into or renewed or an employer policy adopted or retained after July 1, 2011. Any agreement by an individual to waive his or her rights under this chapter is void as against public policy.

275-F:16 Continuing Entitlement or Contractual Rights; Not Created. This chapter shall not create a continuing entitlement or contractual right. The legislature reserves the right to amend or repeal all or part of this chapter at any time, and a benefit or other right granted under this chapter exists subject to the legislature’s power to amend or repeal this chapter. There is no vested private right of any kind against such amendment or repeal.

275-F:17 Rules. The commissioner may adopt rules as necessary to implement this chapter. In adopting rules, the commissioner shall maintain consistency with the rules adopted to implement the federal Family and Medical Leave Act, to the extent such rules are not in conflict with this chapter.

275-F:18 Family Leave Insurance Account. There is hereby established a family leave insurance account into which shall be deposited moneys received from the federal government appropriated for the purposes of this chapter. Moneys in the fund shall be nonlapsing and continually appropriated to the department for payment of benefits for family leave insurance.

275-F:19 Authority to Contract. The department of employment security may contract or enter into interagency agreements with other state agencies for the initial administration of the family leave insurance program.

275-F:20 Reports. Beginning September 1, 2011, the department shall report to the legislature by November 1st of each year on projected and actual program participation, premium rates, fund balances, and outreach efforts.

3 New Subparagraph; State Treasury; Application of Receipts; Family Leave Insurance Account. Amend RSA 6:12, I(b) by inserting after subparagraph (276) the following new subparagraph:

(277) Moneys deposited in the family leave insurance account under RSA 275-F:18.

4 Contingency. The implementation of RSA 275-F as inserted by this act shall be contingent upon the receipt of federal funds appropriated for the purposes of this act, as determined by the commissioner. The commissioner of employment security shall certify the receipt of federal funds and the date of implementation of RSA 275-F to the secretary of state and the director of legislative services.

5 Effective Date. This act shall take effect upon its passage.

LBAO

09-0744

Revised 03/06/09

HB 661 FISCAL NOTE

AN ACT relative to family leave insurance.

FISCAL IMPACT:

      The Department of Employment Security states this bill will increase state restricted revenues and expenditures in FY 2009 and each year thereafter. The Department of Administrative Services, Judicial Branch, and New Hampshire Association of Counties state this bill may increase state general fund and county expenditures by an indeterminable amount in FY 2009 and each year thereafter. The New Hampshire Municipal Association states this bill will have an indeterminable fiscal impact on local expenditures in FY 2009 and each year thereafter. There will be no fiscal impact on county or local revenues.

METHODOLOGY:

      The Department of Employment Security states this bill creates a family leave insurance program to allow parents to take time off to care for a new child or a family member with a serious health condition and establishes the benefit at up to six weeks of $250 per week. This bill establishes a family leave insurance account continually appropriated to the Department for payment of these benefits. The Department states there were 14,378 births in New Hampshire in 2006. The Department assumes not all parents will be eligible for the benefit either because they are not in the workforce or because the businesses in which they are employed are not within the covered parameters. Discounting these parents, but including adoptions and caring for other family members with serious health conditions, the Department assumes there will be approximately 15,000 claims per year and that most claimants will exhaust the full six weeks of benefits, increasing federal expenditures by approximately $22,500,000 (15,000 claimants x $250 per week x 6 weeks) in FY 2011 and each year thereafter. The Department states this bill is contingent upon the receipt of federal funds, which will be nonlapsing and continually appropriated to the Department for the payment of benefits. Because no such bill is currently pending at the federal level, the Department assumes the earliest possible implementation date will be FY 2011.

      The Department assumes claims will be processed at the level of Certifying Officer II (labor grade 20), and will require eight additional CO II positions (15,000 claims/40 claims processed per week/50 working weeks per year = 7.5 positions). Supervision would include two certifying officer IV positions (labor grade 22) and one supervisor (labor grade 24). Additionally, the Department assumes each claim will require one initial correspondence plus three biweekly check mailings at $1.25 per mailing, for a total cost of $75,000 (15,000 x 4 mailings x $1.25) in FY 2011 and each year thereafter. Additionally, the Department assumes a ten percent appeal rate at $189 per appeal, plus a one percent second level appeal rate at $586 per appeal. Upper level appeals, if any, would cost $600 and appeals to the New Hampshire Supreme Court would cost $5,200 per case. Depending upon whether the federal bill includes funds for administration of those benefits, the Department estimates federal or state expenditures will increase as follows:

     

    FY 2011

    FY 2012

    FY 2013

    Certifying Officer II (8 positions @ LG 20)

    $290,316

    $302,796

    $315,120

    Certifying Officer IV (2 positions @ LG 22)

    $78,780

    $82,173

    $85,488

    Supervisor (1 position @ LG 24)

    $42,842

    $44,753

    $46,722

    Total Benefits

    $228,862

    $246,095

    $264,492

    Total Salary and Benefits

    $640,800

    $675,817

    $711,822

           

    Equipment

    $55,000

    $0

    $0

    Correspondence

    $75,000

    $75,000

    $75,000

    Appeals (150 @ $189)

    $28,350

    $28,350

    $28,350

    Level 2 Appeals (15 @ $586)

    $8,790

    $8,790

    $8,790

    Total Other Costs

    $167,140

    $112,140

    $112,140

           

    Total Costs For New Positions And Appeals

    $807,940

    $787,957

    $823,962

    The Department of Administrative Services states this bill may increase state expenditures by an indeterminable amount in FY 2009 and each year thereafter. The Department states to be eligible for the bill, employees will have to meet the same, or in some cases, more stringent requirements than the current federal Family Medical Leave Act (FMLA). While children of civil union partners would already be covered under the FMLA, this bill will extend family leave to partners in a civil union. To the extent partners in a civil union take family leave to care for the other partner, the cost to the State would relate to replacing that person for six weeks and restoring that person to employment at the conclusion of the leave.

    The Judicial Branch states this bill may increase state expenditures by an indeterminable amount in FY 2009 and each year thereafter. The Branch states this bill allows persons aggrieved by the decisions of the Department of Employment Security related to this bill to appeal to the New Hampshire Supreme Court. The Branch states the Supreme Court has discretionary review of such appeals and may decline the appeal, accept the appeal for limited review, or accept the appeal for full review. If one case is selected for full appellate review, the cost to Branch will be in excess of $10,000. Also, the bill allows the Supreme Court to award attorneys’ fees to the prevailing party. These proceedings can give rise to separate proceedings, which would also increase state expenditures. However, as the implementation of this bill is contingent upon receipt of federal funds, and as the Branch cannot estimate the number of cases likely to receive appellate review, the fiscal impact cannot be determined at this time.

    The New Hampshire Association of Counties states this bill may increase county expenditures by an indeterminable amount in FY 2009 and each year thereafter. The Association states this bill requires employees to take leave concurrently with unpaid FMLA leave. To the extent employees who would not have otherwise taken unpaid leave take leave because of the $250 benefit, county expenditures for overtime or hiring additional temporary employees may increase.

    The New Hampshire Municipal Association states this bill will have an indeterminable fiscal impact on local expenditures in FY 2009 and each year thereafter. The Association states some employees may be more likely to avail themselves of the provisions of the federal family medical leave act if paid benefits are available, however, because the Association cannot predict the potential change in employees taking leave, the fiscal impact cannot be determined at this time.

      This bill does not establish positions.

None