Military and Emergency Services Leave Law Summaries
New Hampshire, Military and Emergency Services Leave Law Summaries
New Hampshire's military leave law is codified in the New Hampshire Revised Statutes Annotated at Title VIII, Chapters 110-B and 112. Disaster services leave is located at Chapter 94. For full text of these laws, see Wages-Hours ¶30-58,001 et seq.
DEFINITIONS
“Emergency” is defined as any period of war or armed conflict (Sec. 112:1).
“Armed forces” of the United States includes active service in any branch of the armed forces of the United States (Sec. 112:1).
“Reserve forces” includes the organized reserves of any branch of the armed forces of the United States (Sec. 112:1).
COVERAGE
Both private and public employers are covered by New Hampshire's military leave law.
EXCEPTIONS
No person is entitled to reinstatement in the event of dishonorable discharge from service in the armed forces of the United States (Sec. 112:8).
WHAT THE EMPLOYER MUST DO
Military leave
It is state policy that there be equality of treatment and opportunity for all persons in the national guard, without regard to race, creed, color, national origin, age or sex, to the full extent required by federal law or regulations.
No private person, corporation, partnership or unit or official of state, county or local government may deprive members of the national guard of their employment, or deny them employment, or discriminate against them with respect to the terms and conditions of their employment, or prevent their being employed by another, or obstruct or annoy them or their employer in respect of their trade, business or employment because of their connection with the national guard, or because of their absence from business in performance of their duty as such. Further, no person may dissuade any persons from enlisting in said national guard by threat of injury to them in respect of their employment, trade or business, or of other injury if they so enlist (Sec. 110-B:65).
Private employers.- The adjutant general of the state of New Hampshire is authorized and directed to encourage private employers, in the interests of national defense and the military security of New Hampshire, to grant military leave privileges to their employees comparable to the military leave privileges established and authorized for public employees (Sec. 112:12).
Public employers.-Temporary suspension of duties.- The power, duties and compensation of any department head, of any member of a state agency, board or commission, or of any other state official or employee temporarily ceases upon entry in the armed forces of the United States, and the appointment of any acting member of any state agency, board or commission is in no manner to be deemed an enlargement of the legally prescribed membership of such agency, board or commission (Sec. 112:4).
Term of office.- The term of office of any employee other than those elected by the general court entering the armed forces of the United States for which a temporary appointment is authorized is to be held in abeyance during the continuance of such service. The remainder of the term will not begin to run until 60 days after the person is discharged or has a right to discharge from the armed forces of the United States. If the unexpired term is not applied for, the unexpired term will be completed by the person appointed (Sec. 112:7).
Acting heads.- In case the head of any state department or institution, or a member of any state agency, board or commission, except a per diem or uncompensated member, has entered or is ordered into or enlists in the U.S. Armed Forces in connection with the strengthening of the national defense in an emergency, the governor, with the approval of the executive council, may appoint an acting head or member, who will have all the powers, perform all the duties and assume all the responsibilities of the person for whom the appointee is acting, except that the supreme court may appoint any such acting members of the Board of Tax and Land Appeals (Sec. 112:2).
Replacement employees.- In case any other official or permanent classified state employee has entered or is ordered into or enlists in the armed forces of the United States in such an emergency, the appointing or employing authority of such official or employee under the present law may appoint or employ an acting official or employee, who will have all the powers, perform all the duties and assume all the responsibilities of such official or employee for whom the appointee is acting (Sec. 112:3).
The same statutory authority or law responsible for the compensation of an employee who takes military leave would also determine the compensation of any person appointed to act in the place of that employee (Sec. 112:6).
The term of office of any person appointed temporarily to fill a position while a person is on military leave ends the day prior to that on which the person for whom the temporary officer or employee of the state has been acting resumes the former position, or the equivalent thereof as provided elsewhere by law. Any person temporarily absent from state employment as a member of the armed forces of the United States who becomes physically disabled while in such military service to a degree which, in the judgment of the governor and executive council, disqualifies the person from the performance of the former state duties, or if such person dies while in the armed forces of the United States, the temporary appointee will hold office until the vacancy has by law been filled. In the cases of other officials and employees provided for in Sec. 112:3 above, the appointee will continue to have all the powers, perform all the duties and assume all the responsibilities of the position (Sec. 112:5).
Reemployment.- Any state employee who left or leaves employment to enter the U.S. Armed Forces is to be reinstated after such service in the armed forces, provided application is made within 60 days after discharge from service.
In the event that any such state employee is discharged from the armed forces of the United States because of a physical disability that requires a period greater than 60 days but not longer than one year in which to recuperate and provided the employee will then be physically qualified to resume the former state duties, the limiting period of 60 days will be extended but not for more than one year. Such extension is conditioned upon the employee applying in writing to that effect and must be substantiated by a certificate from a medical physician, to be filed with the appointing or employing authority of such person within a period of 60 days following discharge from the armed forces.
Former employees of the state are entitled to all increases in compensation and to any within-department promotion or advantage that would have accrued had the employee continued in state service during the time of service in the armed forces. However, the number of days of sick leave credited remains the same as accrued at the time of entry into the armed forces.
If during absence from state service there has been any change in the organization of the department, board or commission, or other state agency in which the veteran was formerly employed, so that the position formerly held no longer exists, or if the position formerly held has become technically nonexistent by reason of retitling, consolidation with another position or positions, or subdivision of responsibilities into other positions, the veteran, without undue delay, is entitled to appointment to a position in the reorganized department, board or commission, with the equivalent standing and status to the position held prior to entry into the armed forces of the United States and carrying compensation at no lesser rate. Such reinstatement provides that once the employee is reinstated into a reorganized department, board or commission, the department, board or commission, unless need and an appropriation for an additional employee exists, will immediately decrease its personnel by the discharge of one of its other employees, it being the intention of the legislature that in such an event the reinstatement of the veteran will not unnecessarily increase the number of employees of said department, board or commission (Sec. 112:8).
Training.- Any regular employee of New Hampshire who is a member of any reserve component of the U.S. Armed Forces or of New Hampshire, upon request, is entitled to not more than 15 days leave of absence with pay in any one training year for the purpose of engaging in military drill, training, or other temporary duty under military or naval authority. This does not apply to an employee who has been inducted or has enlisted in active service in the armed forces of the United States (Sec. 112:9).
All political subdivisions of the state are empowered and authorized to grant an annual military leave, with or without pay or with partial pay, to employees of such political subdivisions (Sec. 112:10).
Nonacceptance for duty.- Any employee or official is to be granted a leave of absence for the purpose of receiving an armed forces pre-induction physical examination upon order issued by the selective service system or otherwise entering upon active federal military service. If not accepted for such service, the employee or official is to be promptly reinstated to his or her former position without loss of seniority or status, or reduction in rate of pay, and without prejudice (Sec. 112:11).
National Guard rights and protections.- It is the intention of this section to eliminate the differences in benefits, rights, and protections in employment between individuals called to active duty by the federal government and those called to active duty by the state. Members of the national guard or state guard, when called to active service, state or federal, shall receive the same benefits, privileges, and protections in employment regardless of the activation authority or location of service (Sec. 110-C:1(I), as added by Ch. 82 (S. 446), L. 2001, effective May 3, 2002).
Any person who is called by the governor to active duty, pursuant to RSA 110-B:6 or RSA 111:1, as a member of the national guard or as a member of the militia, shall be afforded such employment and reemployment rights, privileges, benefits, and protections in employment as provided in the Uniformed Services Employment and Reemployment Rights Act (USERRA), as though that person had been called to active duty in the service of the United States; and shall not be denied hiring, retention in employment, promotion, or other incidents or advantages of employment because of any obligation as a member of the national guard or the militia (Sec. 110-C:1(II), as added by Ch. 82 (S. 446), L. 2001, effective May 3, 2002).
Any member of national guard who believes his or her rights have been violated under this section must first attempt mediation through the Employer Support of the Guard and Reserve organization. If mediation is unsuccessful for any reason, including a refusal to participate by the employer, then the mediator shall certify the complaint to the New Hampshire Department of Labor (Sec. 110-C:1(III)(a), as added by Ch. 82 (S. 446), L. 2001, effective May 3, 2002).
The DOL shall provide assistance to affected military members with respect to the enforcement of rights and benefits under this section. If the department, after notice and a hearing, determines that an employer has violated this section, the department shall order a remedy that corrects the violation and may further order the employer to take action that compensates the member for any adverse impact of the violation. Any order to make the member whole shall be limited to pay, time credit, health benefits or other areas over which the employer has control (Sec. 110-C:1(III)(b), as added by Ch. 82 (S. 446), L. 2001, effective May 3, 2002).
If the DOL is unable to successfully resolve a complaint against an employer, it must notify the affected military member and the military member may request that the complaint be referred to the attorney general. The attorney general may commence an action in the name of the state for relief under this chapter for such person (Sec. 110-C:1(III)(d), as added by Ch. 82 (S. 446), L. 2001, effective May 3, 2002).
If the attorney general declines to proceed in a given case, or if the person does not desire the assistance of the attorney general, the affected member may file a petition in superior court seeking relief against the employer for violation of this section. In any civil action to enforce this section, the prevailing party may be allowed reasonable attorney's fees to be assessed by the court and collected as costs (Sec. 110-C:1(III)(e), as added by Ch. 82 (S. 446), L. 2001, effective May 3, 2002).
The courts must give proceedings under this chapter priority on the court calendar (Sec. 110-C:1(III)(f), as added by Ch. 82 (S. 446), L. 2001, effective May 3, 2002).
Any person called by the governor to active duty for a period of 30 days or more as a member of the state guard or national guard or as a member of the militia must be afforded the same civil protections, rights, privileges, benefits and relief accorded under the Soldiers and Sailors Civil Relief Act, as if they had been called to federal active duty in the service of the United States (Sec. 110-C:2(I), as added by Ch. 82 (S. 446), L. 2001, effective May 3, 2002).
In any civil action to enforce this section, the prevailing party may be allowed reasonable attorney's fees to be assessed by the court and collected as costs (Sec. 110-C:2(II), as added by Ch. 82 (S. 446), L. 2001, effective May 3, 2002).
Pay and allowances.- In addition to the pay otherwise authorized in this section, any state employee who is a member of a reserve or the national guard and who is called to full-time active duty by the President of the United States, under the authority of the governor, or under the authority of another governor who participates in the Emergency Management Assistance Compact, shall, for the duration of such full-time active duty, be entitled to special leave with partial pay and continuation of benefits as follows (Sec. 110-B:37(IV)(a), as added by Ch. 272 (H. 1724), L. 2005, effective June 13, 2006):
Partial pay shall be the difference between the employee's regular state compensation and the employee's full-time military basic pay, if the full-time basic pay is less than the regular state pay.
Continuation of health and dental insurance benefits for which the employee and/or the employee's legal dependents are otherwise eligible but for the employee's special leave; provided; however, that in the event of a deployment for which federal health and dental benefits are provided, the federal health and dental benefits shall be primary for the employee.
Retirement benefits shall continue to be provided in accordance with RSA 100-A.
Executive Order No. 2003-4 (Iraq).- Employees of the state who are currently on active or are called to full time active duty by the President of the United States or under the authority of a governor as members of the Reserve or National Guard while on such active military duty to support the U.S. in the Iraqi conflict shall be entitled to special leave with partial pay for an additional period not to exceed one year beginning March 21, 2003. Partial pay shall be the difference in the employee's regular state salary and the employee's full time military salary. The provisions of this Executive Order shall apply to all state employees that have been called or are later called to such active military duty to respond to the conflict in Iraq.
Said employees shall remain state employees while on such active military duty for the purpose of seniority and accruing retirement time. Provided, however, earnable compensation and retirement benefits shall not be increased or decreased by any partial payment made pursuant to this Executive Order but shall be computed as if no call to active military duty had occurred.
Executive Order No. 2005-5.- Employees of the state who are members of a Reserve or the National Guard and who are called to full-time active duty by the President of the United States, under the authority of the governor of New Hampshire, or under the authority of another governor who participates in the Emergency Management Assistance Compact, shall, for the duration of such full-time active duty, be entitled to special leave with partial pay and continuation of benefits as defined below.
Partial pay shall be the difference between the employee's regular state compensation and the employee's full-time military pay, if the full-time military pay is less than the regular state pay.
Continuation of health and dental insurance benefits for which the employee (and/or the employee's legal dependents) are otherwise eligible but for the employee's special leave; provided, however, that in the event of a deployment for which federal health and dental benefits are provided, the federal benefits shall be primary for the employee.
Continued contributions on the employee's behalf to the New Hampshire Retirement System to ensure that the employee called to active duty continues to earn creditable service in the System throughout the period of full-time active duty.
It is the policy of this Administration that said employees shall remain state employees while on such full-time active duty for the purpose of seniority and accruing retirement time. Provided, however, earnable compensation and retirement benefits shall not be increased or decreased by any partial payment made pursuant to this Executive Order but shall be computed as if no call to full-time military duty has occurred (Executive Order 2005-5, September 8, 2005).
Emergency services leave
Any state employee who is a certified disaster relief service volunteer of the American Red Cross may, with the authorization of the employee's supervisor, be granted leave not to exceed 15 working days in any fiscal year to participate in specialized disaster relief service work if: The request for service is made by the American Red Cross; and the disaster is designated as level III or above according to the American National Red Cross regulations and procedures.
An employee granted disaster relief services leave may not lose seniority, accumulated vacation leave, sick leave or earned overtime. In addition, the employee must be paid his or her regular pay based on regular work hours during the leave.
New Hampshire is not liable for workers' compensation claims of the employee arising out of the disaster relief service work (Sec. 94:3-c).
Leave authorized in a state of emergency.- When the governor or the general court declares a state of emergency under RSA 4:45, a member of a fire department, rescue squad, or emergency medical services agency who is called into service of the state or a political subdivision shall have the right to take leave without pay from his or her place of employment to respond to the emergency. No employer shall require an employee to use or exhaust his or her vacation or other accrued leave for the period of emergency service. The employee may choose to take vacation or other accrued leave for the period of emergency service (Ch. 304 (H. 1194), L. 2005, effective June 19, 2006).
An employer may certify to the director of emergency services, communications, and management or to the head of the local emergency management agency that the employee is essential to the employer's own emergency or disaster relief activities. Such certification shall exempt an employee from these provisions (Ch. 304 (H. 1194), L. 2005, effective June 19, 2006).
Firefighter services leave.- Any state employee who is a certified volunteer wildland firefighter may, with the authorization of the employee's supervisor, be granted a leave of absence with pay to participate in wildland fire emergencies to include non-wildland fire emergencies in another state or province pursuant to an agreement with the following: The Northeastern Interstate Forest Fire Protection Compact and the United States federal government. Requests for assistance shall be received and dispatched via the Department of Resources and Economic Development, Division of Forests and Lands (Sec. 227-L:5-a(I), as added by Ch. 162 (H. 1607), L. 2007, enacted and effective June 6, 2008).
An employee, under this section, after completing one year in state service, may be entitled to not more than 30 working days in any fiscal year for such duty. Each participating employee shall be paid the employee's regular pay plus overtime (Sec. 227-L:5-a(II), as added by Ch. 162 (H. 1607), L. 2007, enacted and effective June 6, 2008).
This section shall not apply to employees of the Department of Resources and Economic Development (Sec. 227-L:5-a(IV), as added by Ch. 162 (H. 1607), L. 2007, enacted and effective June 6, 2008).
NOTICE
Reemployment.- Public employees who seek reemployment but who suffer a disability that prevents them from returning to work within the required 60-day period must so notify the employer in writing within 60 days of release from service (Sec. 112:8).
DEADLINES
Reemployment.- Public employees seeking reemployment must apply within 60 days after discharge from service. This 60-day deadline is extended for no more than one year for employees leaving military service with a disability (Sec. 112:8).
ENFORCEMENT
Civil action.- Any member of the national guard discriminated against by an employer has a private cause of action for money damages and injunctive relief against any person or entity discriminating in violation of the state's military leave law governing private and public employers. If relief is granted, the prevailing member of the national guard may recover reasonable attorneys' fees and costs (Sec. 110-B:65).
PENALTIES
Criminal action.- Persons violating the provisions of New Hampshire's military leave law governing private and public employers will be guilty of a misdemeanor if a natural person or guilty of a felony if any other person (Sec. 110-B:65).
<p>Criminal action.— Persons violating the provisions of New Hampshire's military leave law governing private and public employers will be guilty of a misdemeanor </p>
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