New Mexico Employers – Get Ready -- Paid Sick Leave is 6 Months Away
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On July 1, 2022, the New Mexico Healthy Workplace Act takes effect. This Act requires employers in New Mexico with at least 1 employee to provide up to 64 hours of paid sick leave to be used in a 12-month period.
Specifics
The Act requires employers to provide employees with 1 hour of paid sick leave for every 30 hours worked. Employers also have the option to grant, or frontload, the full 64 hours to employees on January 1 of each year. Leave shall begin to accrue upon commencement of the employee’s employment and may be taken beginning on the 60th day after the effective day of the Act (so September 1, 2022).
Exempt employees are assumed to work 40 hours for purposes of sick leave accrual.
Earned, unused leave carries over year to year, without any cap; however, an employer can limit the use of paid sick leave to 64 hours per year.
Nothing in the Act requires an employer to reimburse an employee for accrued but unused sick leave at the time of termination. However, in a proposed rule from the New Mexico Department of Workforce Solutions interpreting the Act, if an employer chooses to frontload 64 hours of leave on January 1, it cannot recoup unused paid sick leave at the time of an employee’s termination. This rule is not final, so it could change.
If an employee is separated but rehired within 12 months, previously accrued earned sick leave shall be reinstated for immediate use.
Reasons for Leave
An employee may use earned sick leave for the following reasons:
Specifics
The Act requires employers to provide employees with 1 hour of paid sick leave for every 30 hours worked. Employers also have the option to grant, or frontload, the full 64 hours to employees on January 1 of each year. Leave shall begin to accrue upon commencement of the employee’s employment and may be taken beginning on the 60th day after the effective day of the Act (so September 1, 2022).
Exempt employees are assumed to work 40 hours for purposes of sick leave accrual.
Earned, unused leave carries over year to year, without any cap; however, an employer can limit the use of paid sick leave to 64 hours per year.
Nothing in the Act requires an employer to reimburse an employee for accrued but unused sick leave at the time of termination. However, in a proposed rule from the New Mexico Department of Workforce Solutions interpreting the Act, if an employer chooses to frontload 64 hours of leave on January 1, it cannot recoup unused paid sick leave at the time of an employee’s termination. This rule is not final, so it could change.
If an employee is separated but rehired within 12 months, previously accrued earned sick leave shall be reinstated for immediate use.
Reasons for Leave
An employee may use earned sick leave for the following reasons:
- For the employee’s mental or physical illness, injury or health condition; medical diagnosis, care or treatment of a mental or physical illness, injury or health condition; or preventive medical care;
- For care of family members for mental or physical illness, injury or health condition; medical diagnosis, care or treatment of a mental or physical illness, injury or health condition; or preventive medical care;
- For meetings at the employee’s child’s school or place of care related to the child’s health or disability;
- For absence necessary due to domestic abuse, sexual assault or stalking suffered by the employee or a family member of the employee, provided that the leave is to obtain medial or psychological treatment or counseling, to relocate, to prepare for or participate in legal proceedings, to obtain services or assist a family member of the employee with any of these activities.
Family member is broadly defined. It means an employee’s spouse or domestic partner or a person related to the employee or spouse/domestic partner, such as a child, stepchild, parent or legal guardian, grandparent, grandchild, sibling, spouse/domestic partner of any of these family members, or an individual whose close association with the employee or employee’s spouse/domestic partner is the equivalent of a family relationship.
Notice and Documentation from the Employee
Earned sick leave shall be provided upon oral or written request by the employee or an individual acting on an employee’s behalf. When leave is foreseeable, the employee shall provide notice in advance of its use and also make a reasonable effort to schedule the use in a manner that does not unduly disrupt the employer’s operations. When leave is not foreseeable, notice should be provided as soon as practicable.
Documentation of the leave cannot be required unless the employee uses three or more consecutive days of sick leave. In that case, documentation signed by a health care provider indicating that the amount of leave taken was necessary will be considered reasonable. In cases of domestic abuse, sexual assault or stalking, an employee can provide as reasonable documentation a police report, a court-issued document, or a signed statement by a victim services organization, clergy member, attorney, advocate, the employee or a family member affirming that the leave was taken for the permitted reasons associated with the abuse, assault or stalking. If the employer requires documentation, the employer must pay any associated fee from the health care provider.
Notice and Documentation from the Employer
At the commencement of employment, an employer must give written or electronic notice to the employee of the employee’s right to earned sick leave, the manner in which leave is accrued and calculated, the terms of the use of earned sick leave, that retaliation for the use of sick leave is prohibited, the employee’s right to file a complaint with the New Mexico Department of Workforce Solutions, Labor Relations Division, and all means of enforcing violations of the Act. Notice must be provided in English, Spanish or any language spoken by at least 10% of the workforce.
Employers also must display a poster containing the same information in conspicuous and accessible spaces where employees work. These notices and posters will be available from the Labor Relations Division.
Recordkeeping
Employers must retain records documenting hours worked and earned sick leave for all employees for 48 months.
Retaliation and Enforcement
Employers cannot retaliate, including taking or threatening to take adverse action, against an employee for engaging in any activity under the Act or raising a concern about violations of the Act.
The Labor Relations Division will establish a complaint procedure to receive and investigate complaints and to audit employers to ensure that they are in compliance with the Act.
An employee may file a civil lawsuit within 3 years of any alleged violation of the Act. However, there is no requirement a complaint be filed first with the Labor Relations Division. An employer can be liable for 3 times actual damages for not compensating an employee paid sick leave or denying the use of paid sick leave. If an employee is unlawfully terminated, the employee can recover lost wages and benefits, an additional $1,000, and reinstatement or other equitable relief. Attorneys’ fees are also recoverable by an employee who prevails.
Miscellaneous
Paid sick leave can be taken in increments of 1 hour, or lesser increments allowed by the employer’s payroll system.
Employers can grant more leave than required by the Act. Employers also may continue to use existing paid time off policies, as long as paid time off can be used for the same purposes and under the same conditions that paid sick time can be used under the Act.
Kemp Smith's Labor and Employment lawyers are available to assist with this and any other employment-related issues or questions.
Notice and Documentation from the Employee
Earned sick leave shall be provided upon oral or written request by the employee or an individual acting on an employee’s behalf. When leave is foreseeable, the employee shall provide notice in advance of its use and also make a reasonable effort to schedule the use in a manner that does not unduly disrupt the employer’s operations. When leave is not foreseeable, notice should be provided as soon as practicable.
Documentation of the leave cannot be required unless the employee uses three or more consecutive days of sick leave. In that case, documentation signed by a health care provider indicating that the amount of leave taken was necessary will be considered reasonable. In cases of domestic abuse, sexual assault or stalking, an employee can provide as reasonable documentation a police report, a court-issued document, or a signed statement by a victim services organization, clergy member, attorney, advocate, the employee or a family member affirming that the leave was taken for the permitted reasons associated with the abuse, assault or stalking. If the employer requires documentation, the employer must pay any associated fee from the health care provider.
Notice and Documentation from the Employer
At the commencement of employment, an employer must give written or electronic notice to the employee of the employee’s right to earned sick leave, the manner in which leave is accrued and calculated, the terms of the use of earned sick leave, that retaliation for the use of sick leave is prohibited, the employee’s right to file a complaint with the New Mexico Department of Workforce Solutions, Labor Relations Division, and all means of enforcing violations of the Act. Notice must be provided in English, Spanish or any language spoken by at least 10% of the workforce.
Employers also must display a poster containing the same information in conspicuous and accessible spaces where employees work. These notices and posters will be available from the Labor Relations Division.
Recordkeeping
Employers must retain records documenting hours worked and earned sick leave for all employees for 48 months.
Retaliation and Enforcement
Employers cannot retaliate, including taking or threatening to take adverse action, against an employee for engaging in any activity under the Act or raising a concern about violations of the Act.
The Labor Relations Division will establish a complaint procedure to receive and investigate complaints and to audit employers to ensure that they are in compliance with the Act.
An employee may file a civil lawsuit within 3 years of any alleged violation of the Act. However, there is no requirement a complaint be filed first with the Labor Relations Division. An employer can be liable for 3 times actual damages for not compensating an employee paid sick leave or denying the use of paid sick leave. If an employee is unlawfully terminated, the employee can recover lost wages and benefits, an additional $1,000, and reinstatement or other equitable relief. Attorneys’ fees are also recoverable by an employee who prevails.
Miscellaneous
Paid sick leave can be taken in increments of 1 hour, or lesser increments allowed by the employer’s payroll system.
Employers can grant more leave than required by the Act. Employers also may continue to use existing paid time off policies, as long as paid time off can be used for the same purposes and under the same conditions that paid sick time can be used under the Act.
Kemp Smith's Labor and Employment lawyers are available to assist with this and any other employment-related issues or questions.
