Article written by Andrea B. Saglimbene, Employment Law Attorney / Business NH, April 2026
After congratulating an employee on the news of their pregnancy, even well-intentioned employers are often overwhelmed with questions like: Will the employee work up to the birth of the child? Will the employee be unable to perform essential duties of the job immediately or in the future? Will the employee have unexpected complications after the birth that impact their ability to perform their work? Or how much leave will the employee need to attend to the newborn child?
Navigating pregnancy in the workplace involves balancing several legal obligations and operational needs. In New Hampshire, private employers with pregnant employees often find themselves unsure as to which of the several state and federal laws apply and under what circumstances. Conscientious employers complying with the various pregnancy-related leave laws may find themselves inadvertently neglecting their obligations to provide reasonable accommodations.
Just as a driver must stop at an intersection and determine when it is safe to proceed, Employers complying with pregnancy leave laws must be sure to stop and assess whether a reasonable accommodation is required at various times during an employee’s pregnancy. This article identifies common scenarios that highlight the intersection between an employee’s legal right to leave and an employer’s obligation to provide a reasonable accommodation.
Legal Landscape: Here is a quick overview of the relevant laws that apply depending on the size of the employer based on the number of employees[i]:
In New Hampshire, it is an unlawful act of discrimination for employers (6>) to deny a pregnant employee time off work for “the period of temporary physical disability resulting from pregnancy, childbirth or related medical conditions.”[ii] This anti-discrimination law also requires employers to allow the employee to return to her position when she is physically able to do so.
The Federal Pregnant Worker’s Fairness Act (PWFA)(15>) requires employers to provide a reasonable accommodation to qualified employees with pregnancy and/or post-partum conditions. Under the Americans with Disabilities Act (ADA)(15>), a reasonable accommodation is something that permits a qualified person with a disability to perform the essential functions of their job and that is not an undue burden to the employer. The ADA generally requires an employee to establish they are disabled and does not require employers to remove essential job functions as a reasonable accommodation. However, the PWFA specifically defines pregnancy as a temporary disability and requires employers to temporarily suspend essential functions of an employee’s job if those functions will be resumed “in the near future.”
In New Hampshire, employers (20>) must permit up to 25 hours of time off work for an employee to attend their own medical appointments for childbirth, postpartum care, or the employee’s child’s pediatric medical appointments within the first year of their child’s birth. [iii]
Finally, the Federal Family Medical Leave Act (FMLA), requires private employers (50>) to permit an employee up to 12 weeks of unpaid leave after the birth of their child or for their own serious health condition.
Calming the Concern. Answers to the most common employer questions.
Can the pregnant employee continue to work? A pregnant employee may be able to work up to the day of their child’s birth and New Hampshire law (20>) permits her to use up to 25 hours of unpaid leave to attend medical appointments for childbirth.
What if the pregnant employee is immediately unable to work? For some positions, a pregnant employee will immediately need to refrain from performing some of the essential functions of the job. New Hampshire anti-discrimination law (6>) may require the employee to be given time off but stop at this intersection! If PWFA (15>) applies, the employer must engage in the interactive process and provide a reasonable accommodation, which may include a modification of the employee’s duties that includes the temporary removal of essential functions of the job. If such an accommodation is given, it should be in writing, authorized only through the birth of the child, and indicate if an accommodation is needed after the birth, the parties will reengage in the interactive process at that time.
What if the pregnant employee is temporarily unable to work? When, for example, a pregnant employee receives a doctor’s order to remain in bed for several weeks or suffers complications from a miscarriage they are entitled to time off. Such conditions are considered temporary physical disabilities that result from pregnancy. Therefore, New Hampshire ant-discrimination law (6>) applies, and the employee must be granted the necessary leave and return rights to her position but stop at this intersection! The employee may also request a reasonable accommodation under the PWFA (15>). Any accommodations granted should be in writing and authorized for a specific duration of time. Finally, the employee could choose to request FMLA (50>) if their diagnosis qualifies as a serious health condition.
What if the pregnant employee is temporarily unable to perform all the essential functions of her job after pregnancy? After an employee gives birth, has taken any accrued leave, unpaid leave under the New Hampshire anti-discrimination law (6>), or leave under FMLA (50>) and is ready to return to work she may experience post-partum conditions that prevent her from performing all the essential functions of her job. New Hampshire anti-discrimination law (6>) may require the employee be given time off but stop at this intersection! If PWFA applies (15>), the employer must engage in the interactive process and provide a reasonable accommodation, which may include a modification of the employee’s duties that includes the removal of essential functions of the job. If such an accommodation is given, it should be in writing, authorized only temporarily through a date certain, at which time the accommodation will be reviewed. However, if the temporary condition becomes permanent, the condition moves from being covered by PWFA (15>) to falling under the ADA (15>). Under the ADA, an employer is still required to provide an accommodation if it is not an undue burden, but the employer is now no longer required to remove essential functions of the position as an accommodation.
How much leave can an employee take to care for a newborn child? There are distinctions between an employee’s entitlement to leave for their own pregnancy-related medical appointments and for medical appointments for their newborn child.
New Hampshire anti-discrimination law (6>) does not apply to an employee’s need to attend their child’s medical appointments. But New Hampshire law (20>) does provide up to 25 hours of unpaid leave to either parent to attend infant pediatric medical appointments in the child’s first year of life. However, the 25-hour limit is for both the employee mother’s medical appointments and her attendance at her child’s medical appointments in the first year. And an employer subject to FMLA (50>) must provide either parent with up to 12 weeks of unpaid leave during the child’s first year of life. There are no reasonable accommodation intersections if the request concerns the medical condition of someone other than the employee.
To properly navigate the crowded legal landscape and appropriately address a pregnant employee’s needs employers must manage leave policies and train supervisors to ensure required leave is granted and the proper consideration of reasonable accommodation entitlements occurs.
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[i] (X>) will be used as shorthand for the phrase “with (X) or more employees.”
[ii] RSA 354-A:7.
[iii] RSA 275:37-F.
