HB 662-FN – AS INTRODUCED
2009 SESSION
08/04
HOUSE BILL 662-FN
AN ACT relative to paid sick leave for employees.
SPONSORS: Rep. Gile, Merr 10; Rep. Skinder, Sull 1; Rep. Pilliod, Belk 5; Rep. Gargasz, Hills 5; Rep. R. Holden, Hills 7
COMMITTEE: Labor, Industrial and Rehabilitative Services
This bill requires employers to provide paid sick leave for employees.
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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Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.
09-0745
08/04
STATE OF NEW HAMPSHIRE
In the Year of Our Lord Two Thousand Nine
AN ACT relative to paid sick leave for employees.
Be it Enacted by the Senate and House of Representatives in General Court convened:
1 Findings. The general court finds that all workers in New Hampshire can address their own health and safety needs and the health and safety needs of their families by requiring employers to provide a minimum level of paid sick and safe days including time for family care. The general court further finds that enabling workers to seek early and routine medical care for themselves and their family members diminishes public and private health care costs in New Hampshire. The general court seeks to safeguard the public welfare, health, safety, and prosperity of the people of and visitors to New Hampshire.
2 New Chapter; Paid Sick Leave for Employees. Amend RSA by inserting after chapter 275-E the following new chapter
CHAPTER 275-F
PAID SICK LEAVE FOR EMPLOYEES
275-F:1 Definitions. In this chapter:
I. “Commissioner” means the commissioner of the department of labor.
II. “Department” means the department of labor.
III. “Domestic violence” means “domestic violence” as defined in RSA 173-B:1, I.
IV. “Employee” means “employee” as defined in RSA 279:1, X and includes recipients of public benefits who are engaged in work activity as a condition of receiving public assistance.
V. “Employer” means “employer” as defined in RSA 279:1, XI.
VI. “Family member” means:
(a) A biological, adopted or foster child, stepchild or legal ward, a child of a domestic partner, or a child to whom the employee stands in loco parentis.
(b) A biological, foster, stepparent, or adoptive parent, or legal guardian of an employee or an employee’s spouse or domestic partner or a person who stood in loco parentis when the employee was a minor child.
(c) A person to whom the employee is legally married under the laws of New Hampshire or with whom the employee has entered into a civil union under RSA 457-A.
(d) A grandparent or spouse or domestic partner of a grandparent.
(e) A grandchild.
(f) A biological, foster, or adopted sibling or spouse, or domestic partner of a biological, foster, or adopted sibling.
VII. “Health care professional” means any person licensed under federal or state law to provide medical or emergency services, including doctors, nurses, and emergency room personnel.
VIII. “Paid sick leave” means time that is compensated at the same hourly rate and with the same benefits, including health care benefits, as the employee normally earns during hours worked and is provided by an employer to an employee for the purposes described in RSA 275-F:3.
IX. “Retaliatory personnel action” means the discharge, suspension, or demotion by an employer of an employee or any other adverse action taken by an employer against an employee and also includes any sanctions against a recipient of public benefits.
X. “Sexual assault” means “sexual assault” as defined in RSA 632-A.
XI. “Small business” means any private individual, firm, partnership, institution, corporation, or association for which fewer than 10 persons work for compensation during a given week. In determining the number of persons performing work for compensation during a given week, all persons performing work for compensation on a full-time or part-time basis shall be counted.
XII. “Stalking” means “stalking” as defined as in RSA 633:3-a.
275-F:2 Accrual of Paid Sick Leave.
I. All full or part-time employees who work in New Hampshire for more than 6 months in the same job in a year shall receive paid sick leave as provided in this chapter.
II. Employees shall not accrue more than 40 hours of paid sick leave in a calendar year, unless the employer selects a higher limit.
III. Employees may use accrued paid sick leave beginning 6 months after the employee’s date of hire.
IV. Employers may allow employees to carry over paid sick leave to the following calendar year.
V. Any employer with a paid leave policy who makes available an amount of paid leave sufficient to meet the requirements of this chapter and which may be used for the same purposes and under the same conditions as paid sick under this chapter shall not be required to provide additional paid sick leave.
VI. Nothing in this chapter shall be construed as requiring financial or other reimbursement to an employee from an employer upon the employee’s termination, resignation, retirement, or other separation from employment for accrued paid sick leave that has not been used.
VII. Upon separation from employment, if the employee is rehired within 12 months of separation by the same employer, previously accrued paid sick leave that had not been used may be reinstated at the discretion of employer.
VIII. Employers may advance sick leave to an employee ahead of accrual by such employee.
275-F:3 Use of Paid Sick Leave
I. Paid sick leave shall be provided to an employee by an employer for:
(a) An employee’s mental or physical illness, injury, or health condition, an employee’s need for medical diagnosis, care, or treatment of a mental or physical illness, injury, or health condition, or an employee’s need for preventive medical care.
(b) Care of a family member with a mental or physical illness, injury, or health condition, care of a family member who needs medical diagnosis, care, or treatment of a mental or physical illness, injury, or health condition, or care of a family member who needs preventive medical care.
(c) Absence necessary due to domestic violence, sexual assault, or stalking, provided the leave is to:
(1) Seek medical attention for the employee or employee’s family member to recover from physical or psychological injury or disability caused by domestic or sexual violence.
(2) Obtain services from a victim services organization.
(3) Obtain psychological or other counseling.
(4) Seek relocation due to the domestic or sexual violence or stalking.
(5) Take legal action, including preparing for or participating in any civil or criminal legal proceeding related to or resulting from the domestic or sexual
violence.
II. Paid sick leave shall be provided upon the written request of an employee. When possible, the request shall include the expected duration of the absence.
III. When the use of paid sick leave is foreseeable, the employee shall make a good faith effort to provide notice of the need for such leave to the employer in advance of the use of the leave and shall make a reasonable effort to schedule the use of paid sick leave in a manner that does not unduly disrupt the operations of the employer.
IV. Accrued sick leave may be used in the smaller of hourly increments or the smallest increment that the employer’s payroll system uses to account for absences or use of other time.
V.(a) For sick leave of more than 3 consecutive days, an employer may require reasonable documentation that the sick leave is covered by paragraph I, including:
(1) Documentation signed by a health care professional indicating that sick time is necessary.
(2) A police report indicating that the employee was a victim of domestic violence, stalking, or sexual assault.
(3) A court order, or a signed statement from a victim and witness advocate affirming that the employee is involved in legal action related to domestic violence, stalking, or sexual assault.
(b) An employer may not require that the documentation explain the nature of the illness or the details of the violence.
VI. An employer shall not require, as a condition of providing paid sick leave under this chapter, that the employee search for or find a replacement worker to cover the hours during which the employee is on paid sick leave.
275-F:4 Exercise of Rights Protected.
I. It shall be unlawful for an employer or any other person to interfere with, restrain, deny the exercise of, or deny the attempt to exercise, any right protected under this chapter.
II. An employer shall not take retaliatory personnel action or discriminate against an employee because the employee has exercised rights protected under this chapter.
III. It shall be unlawful for an employer to count paid sick leave taken under this chapter as an absence that may lead to or result in discipline, discharge, demotion, suspension, or any other adverse action.
IV. This chapter shall apply to any person who mistakenly, but in good faith, alleges violations of this section.
V. There shall be a rebuttable presumption of unlawful retaliation under this chapter whenever an employer takes adverse action against an employee or former employee within 90 days of when that employee or former employee:
(a) Files a complaint with the department or a court alleging a violation of any provision of this.
(b) Informs any person about an employer’s alleged violation of this section.
(c) Cooperates with the department or other persons in the investigation or prosecution of any alleged violation of this section.
(d) Opposes any policy, practice, or act that is unlawful under this section.
(e) Informs any person of his or her rights under this section.
275-F:5 Notice and Posting.
I. Employers shall give notice that employees are entitled to paid sick leave, the amount of paid sick leave, and the terms of its use guaranteed under this chapter, that retaliation against employees who request or use paid sick leave is prohibited, and that each employee has the right to file a complaint or bring a civil action if sick leave as required by this section is denied by the employer or the employee is retaliated against for requesting or taking paid sick leave.
II. Employers shall provide each of their employees with a notice in English and in any language that is the first language spoken by at least 5 percent of the employer’s workforce that contains the information required in paragraph I.
III. Employers shall display a poster in a conspicuous and accessible place in each establishment where such employees are employed which contains in English and in any language that is the first language spoken by at least 5 percent of the employer’s workforce, all information required under paragraph I.
IV. The department shall create and make available to employers posters that contain the information required under paragraph I.
V. An employer who willfully violates the notice and posting requirements of this section shall be subject to a civil fine in an amount not to exceed $100 for each separate offense.
275-F:6 Employer Records. Employers shall retain records that document the hours worked by employees and paid sick leave taken by employees, for a period of 5 years, and shall allow the department access to such records, with appropriate notice and at a mutually agreeable time, to monitor compliance with the requirements of this chapter. If the employer does not maintain or retain adequate records documenting hours worked by the employee and paid sick leave taken by the employee, or does not allow the department reasonable access to such records, it shall be presumed that the employer has violated the chapter, absent clear and convincing evidence otherwise.
275-F:7 Regulations.
I. The commissioner shall adopt rules, pursuant to RSA 541-A, relative to the forms, procedures, implementation, and enforcement of this chapter.
II. The commissioner shall coordinate implementation and enforcement of this chapter.
275-F:8 Enforcement.
I. An employee or other person may report to the agency any suspected violation of this chapter. The department shall encourage reporting pursuant to this section by protecting the confidentiality of, to the maximum extent permitted by applicable laws, the name and other identifying information of the employee or person reporting the violation. However, with the authorization of such person, the department may disclose his or her name and identifying information as necessary to enforce this section or for other appropriate purposes.
II. The department may take appropriate steps to enforce this section including investigation of complaints of violations of this chapter and referral to the attorney general for civil action in cases of violations.
275-F:9 Confidentiality and Nondisclosure. An employer shall not require disclosure of details relating to domestic violence, sexual assault, or stalking or the details of an employee’s medical condition as a condition of providing paid sick leave under this chapter. If an employer possesses health information or information pertaining to domestic violence, sexual assault, or stalking about an employee or employee’s family member, such information shall be treated as confidential and not disclosed except to the affected employee or with the permission of the affected employee.
275-F:10 Statutory Minimum for Sick Leave Policies.
I. Nothing in this chapter shall be construed to discourage or prohibit an employer from the adoption or retention of a paid sick leave policy which exceeds the requirements of this chapter.
II. Nothing in this chapter shall be construed as altering or diminishing the obligation of an employer to comply, with any contract, collective bargaining agreement, employment benefit plan, or other agreement providing more generous paid sick leave to an employee than required in this chapter.
III. Nothing in this chapter shall be construed as diminishing the rights of public employees regarding paid sick leave or use of sick leave as provided in any laws of the state of New Hampshire.
275-F:11 Other Legal Requirements. This chapter provides minimum requirements pertaining to paid sick leave and shall not be construed to preempt, limit, or otherwise affect the applicability of any other law, regulation, requirement, policy, standard, or collective bargaining agreement that provides for greater accrual or use by employees of sick leave, whether paid or unpaid, or that extends other protections to employees.
275-F:12 Severability. If any provision of this chapter or application thereof to any person or circumstance is judged invalid, the invalidity shall not affect other provisions or applications of the chapter which can be given effect without the invalid provision or application, and to this end the provisions of this chapter are declared severable.
3 Effective Date. This act shall take effect 90 days after its passage.
LBAO
09-0745
Revised 11/18/09
HB 662 FISCAL NOTE
AN ACT relative to paid sick leave for employees.
FISCAL IMPACT:
The Department of Labor, Department of Administrative Services, New Hampshire Association of Counties, and New Hampshire Municipal Association state this bill may increase state, county, and local expenditures by an indeterminable amount in FY 2010 and each year thereafter. This bill will have no fiscal impact on state, county, or local revenues.
METHODOLOGY:
The Department of Labor states this bill requires employers to provide paid sick leave for employees. The Department states a poster, rules, and forms would need to be developed, increasing the Departments costs by an indeterminable amount. The Department currently has a process for filing complaints and holding administrative hearings, including administering civil penalties. However, because the Department has no data to estimate how this activity may increase under this bill, the full fiscal impact cannot be determined at this time.
The Department of Administrative Services states this bill will allow paid sick leave for both full-time and part-time employees. The state does not provide leave accrual for part-time employees at the 40 hour amount identified in this bill. Because the Department cannot estimate the number of employees taking sick leave, or the extent to which additional human resources will be required to cover sick employees, the fiscal impact cannot be determined at this time. However, the Department estimates if every part-time employee took the full sick leave amount and each employee was required to be covered by another employee at the average pay for that position, the cost for a 40-hour week would be as follows:
Type of PT Employee |
Number of Employees |
Average Hourly Wage |
Total |
Adjunct Faculty |
1,727 |
$38.35 |
$2,649,218 |
Classified Employees |
3,628 |
$13.42 |
$1,947,510 |
Judicial Branch |
211 |
$57.71 |
$487,072 |
The Department of Administrative Services states adjunct faculty are paid according to the adjunct faculty salary schedule which is determined by faculty level and catalogue hour. A catalogue hour is defined as the sum of a lecture and lab/clinic practicum hour in each institution’s catalogue. The Department determined the average adjunct pay for a semester at $613.60, then divided the $613.60 by 16 weeks in a semester to obtain the $38.35 average hourly wage.
The Department assumes non-classified part-time employees would be covered by this bill. The fiscal impact is indeterminable; however, the Department assumes expenditures would increase. Non-classified employees perform a variety of tasks from motorcycle rider instruction, serving on a board or commission, working for the Secretary of State, working for Fire Standards and Training, and working in the Legislature. In addition, not all non-classified employees are paid on an hourly basis; some are paid on a daily basis. The Department does not have all the necessary data to identify how the non-classified employees are paid to calculate a reasonable average hourly wage.
The New Hampshire Association of Counties states to the extent full and part-time county employees are not already provided 40 hours of paid sick leave each calendar year, or to the extent employees are not currently allowed sick leave for all of the reasons identified as allowable reasons in this bill, county expenditures may increase if other personnel are required to cover the sick days. As the Association cannot estimate the number of employees without sick leave or how many may require coverage by other personnel, the fiscal impact cannot be determined at this time.
The New Hampshire Municipal Association states to the extent full and part-time municipal employees are not already provided 40 hours of paid sick leave each calendar year, or to the extent employees are not currently allowed sick leave for all of the reasons identified as allowable reasons in this bill, local expenditures may increase if other personnel are required to cover the sick days. As the Association cannot estimate the number of employees without sick leave or how many may require coverage by other personnel, the fiscal impact cannot be determined at this time.
This bill does not include an appropriation or establish positions.