If Pain, Yes Gain—Part 97: Mandatory Paid Sick Leave Law Coming to New Mexico

Seyfarth Shaw LLP

Seyfarth Synopsis: Earlier this month, New Mexico passed a statewide paid sick leave law, requiring all private employers with one or more employees to provide eligible employees with paid sick leave.  The law becomes effective July 1, 2022.

On April 7, 2021, Governor Michelle Lujan Grisham signed into law the New Mexico Healthy Workplaces Act (the “Act”), House Bill 20,[1] which requires covered employers to provide eligible employees with paid sick leave and permits use of up to 64 hours of paid sick leave per year.  New Mexico is the sixteenth state to enact a statewide paid sick leave or paid time off (“PTO”) mandate, joining a number of neighboring or nearby states, including Arizona, California, Colorado and Nevada.[2] The new statewide law goes into effect on July 1, 2022.

This is the second paid time off law to be passed in New Mexico.  The first such law was the Bernalillo County Employee Wellness Act,[3] which after multiple amendments and at least one delay, went into effect on October 1, 2020.  Neither the Act nor the Bernalillo County website provide information on whether the Bernalillo County mandate will remain in effect in light of the passage of the statewide law.

Here are key highlights of the Act:

  • Employer Coverage: Employer coverage under the Act is broad. The Act defines “employer” to include an individual, partnership, association, corporation, business trust, legal representative or any organized group of persons employing one or more employees at any one time.  The definition of “employer” does not include public employers, such as the United States, the state, or any political subdivision of the state.
  • Employee Definition: Employee is broadly defined to include an individual employed by an employer for remuneration, including part-time, seasonal, and temporary basis employees. The definition, however, does not include employees of an employer subject to Title II of the federal Railway Labor Act or employees covered by the federal Railroad Unemployment Insurance Act or the Federal Employers’ Liability Act. 
  • Accrual Rate: Employees may begin to accrue earned sick leave on July 1, 2022 (i.e., the law’s effective date) or the employee’s commencement of employment, whichever is later. Employees accrue one hour of earned sick leave for every 30 hours worked.[4]
  • Frontloading: Rather than permit employees to accrue earned sick leave, an employer can elect to grant employees a lump-sum grant of 64 hours of earned sick leave for the upcoming year on January 1 of each year. The Act provides that if an employee’s employment begins after January 1 of a given year, employers may provide a pro rata portion of the 64 hours of earned sick leave for use during the remainder of that year.  It is unclear at this time whether frontloading gets rid of an employer’s year-end carry over obligations (see below).  Hopefully this and other open questions from the Act will be addressed in forthcoming regulations and administrative guidance.
  • Usage Waiting Period: It does not appear that the Act sets a waiting period for when newly hired employees can begin using earned sick leave. The Act states that employees can begin to use available earned sick leave on the later of July 1, 2022 or the employee’s commencement of employment.
  • Usage Cap: Employees are not entitled to use more than 64 hours of earned sick leave per 12-month period. By comparison, this annual usage cap is significantly greater than the annual usage cap standards imposed by surrounding states’ paid sick leave laws, e.g. Arizona (40 hours), Colorado general paid sick leave mandate (48 hours); Nevada PTO law (40 hours), and California (24 hours / 3 days).
  • Year-End Carryover: The Act does not appear to set a cap on the amount of earned, unused sick leave that carries over at year-end.
  • Calendar Year: An employer may use one of the following methods for determining the 12-month period for which earned sick leave may be used: (1) the calendar year; (2) any fixed 12-month leave period, such as a fiscal year, a year required by other law, or a year starting on an employee’s anniversary date; (3) the 12-month period measured forward from the date of an employee’s first use of earned sick leave occurs; or (4) a rolling 12-month period measured backward from the date an employee uses any earned sick leave.
  • Reasons for Use: An employee may use available earned sick leave for the following covered reasons:
  1. The employee’s (a) mental or physical illness, injury, or health condition; (b) medical diagnosis, care, or treatment of a mental or physical illness, injury, or health condition; or (c) preventive medical care;
  2. Caring for a family member of the employee for (a) mental or physical illness, injury, or health condition; (b) medical diagnosis, care, or treatment of a mental or physical illness, injury, or health condition; or (c) preventive medical care.
  3. Meetings at the employee’s child’s school or place of care related to the child’s health or disability; or
  4. Absence necessary due to domestic abuse, sexual assault, or stalking suffered by the employee or a family member of the employee, if the leave is for the employee to: (a) obtain medical or psychological treatment or other counseling; (b) relocate; (c) prepare for or participate in legal proceedings; or (d) obtain services or assist a family member of the employee with any of the activities set forth above.
  • Covered Family Members: Under the Act, family member includes: (1) an employee’s spouse or domestic partner; and (2) a person related to an employee or an employee’s spouse or domestic partner as: (a) a child; (b) a parent; (c) a grandparent; (d) a grandchild; (e) a sibling; (f) a spouse or domestic partner of a family member; or (g) an individual whose close association with the employee or the employee's spouse or domestic partner is the equivalent of a family relationship.
  • Increments of Use: Earned 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.
  • Rate of Pay: Earned sick leave must be paid at the same hourly rate and with the same benefits, including health care benefits, as an employee normally earns during hours worked; however, it cannot be less than the applicable minimum wage rate.
  • Notice to Employer: Employers must provide earned sick leave upon the oral or written request of an employee or an individual acting on the employee’s behalf.
    • Foreseeable Leave: If the need for leave is foreseeable, the employee must make a reasonable effort to provide oral or written notice in advance. The Act also provides that the employee must make a reasonable effort to schedule the use of earned sick leave in a manner that does not unduly disrupt the operations of the employer.
    • Unforeseeable Leave: If the leave in unforeseeable, the employee must notify the employer of their need for leave orally or in writing as soon as practicable.
  • Documentation: An employer may require reasonable documentation that earned sick leave has been used for a covered purpose if the employee uses available earned sick leave on two or more consecutive work days. The Act provides examples of documentation that is considered reasonable.[5]
  • Pay Out on Termination: Employers are not required to pay out accrued, unused earned sick leave upon an employee’s termination, resignation, retirement, or other separation from employment. However, if an employee is separated from employment and rehired within 12 months of separation by the same employer, the employer must reinstate previously accrued, unused earned sick leave.
  • Compliance Using Existing Policy: Employers with paid time off policies can use those policies to comply with the Act if the policy (1) makes available an amount of earned sick leave that meets the accrual requirements of the Act; and (2) permits that the time be used (a) at minimum the same purposes and (b) under the same terms and conditions that the Act requires.
  • Coordination of Benefits: The Act notes that an employer cannot require an employee to use other paid leave before the employee uses earned sick leave under the Act.
  • Collective Bargaining Agreements: The Act does not appear to provide an exemption for employees who are covered by collective bargaining agreements. In fact, the Act indicates that employers must provide employees with additional sick leave, as required under the law, unless paid time off provided in a collective bargaining agreement may be used for (1) the same purposes and (2) under the same terms and conditions as the law requires.
  • Notice and Posting:
    • Notice: Employers must provide employees with written or electronic notice at the commencement of the following: (1) the employee’s right to earned sick leave; (2) the manner in which sick leave is accrued and calculated; (3) the terms of the use of earned sick leave as guaranteed by the Act; (4) the retaliation against employees for the use of sick leave is prohibited; (5) the employee’s right to file a complaint with the division if earned sick leave is denied by the employer or if the employee is retaliated against; and (6) all means of enforcing violations of the Act.
    • Posting: Employers must display a poster that contains the information listed above in a conspicuous and accessible place in each establishment where employees are employed.
    • Languages: Notice must be provided in English, Spanish, or any language that is the first language spoken by at least 10 percent of the employer’s workforce, as requested by the employee. Similarly, the poster must be displayed in English, Spanish, and any language that is the first language spoken by at least 10 percent of the employer’s workforce.
    • Obtaining Model Notice/Poster: The division will create and make available model notices and posters in English, Spanish, and other language deemed appropriate by the division.
  • Recordkeeping: Employers must retain records documenting hours worked by employees and earned sick leave taken by employees for the preceding 48-month period.
  • Retaliation: Employers cannot take or threaten any adverse action against an employee that is reasonably likely to deter the employee from attempting to exercise a right granted by the Act or because the employee has (1) exercised or attempted to exercise rights under the Act or (2) reasonably alleged or raised concerns about violations of the Act to the employer, the employer’s agent, other employees, a government agency, or the public through print, online, social or other media.

Employer Takeaways:

Before the New Mexico statewide Healthy Workplaces Act’s July 1, 2022 effective date, we expect further guidance by the New Mexico labor relations division of the workforce solutions department. In the meantime, employers should consider taking the following steps:

  • Monitor the New Mexico labor relations division of the workforce solutions department’s website for the release of further guidance.
  • Review sick leave or PTO policies and procedures to ensure that they meet at least the minimum requirements of the Act.
  • Develop a New Mexico paid sick leave policy that complies with the Act for any employees who are not covered under the employer’s existing paid sick leave or PTO policies.
  • Review and, as necessary, revise anti-retaliation, attendance, conduct, and discipline policies to prevent retaliation against employees for taking time off under the Act.
  • Train supervisory and managerial employees, as well as HR, on the Act’s requirements.

With the paid leave landscape continuing to expand and grow in complexity, companies should reach out to their Seyfarth contact for solutions and recommendations on addressing compliance with  paid leave requirements. To stay up-to-date on Paid Sick Leave developments, click here to sign up for Seyfarth’s Paid Sick Leave mailing list. Companies interested in Seyfarth’s paid sick leave laws survey should reach out to sickleave@seyfarth.com.

[1] Information on the legislation can be found here.

[2] Including New Mexico, the states that have enacted a statewide general non-COVID-19 paid sick leave or PTO mandate include: (1) Arizona; (2) California; (3) Colorado; (4) Connecticut; (5) Maine (PTO law); (6) Maryland; (7) Massachusetts; (8) Michigan; (9) Nevada (PTO law); (10) New Jersey; (11) New Mexico; (12) New York; (13) Oregon; (14) Rhode Island; (15) Vermont; and (16) Washington. In addition, there are non-COVID-19 paid sick leave mandates in (17) Washington, D.C. and nearly two dozen municipalities.

[3] A summary of the initial version of the Bernalillo County, NM mandatory PTO ordinance can be found here.

[4] The law notes that employees who are exempt from the FLSA’s overtime requirements are assumed to work 40 hours per workweek for purposes of earned sick leave accrual, unless the exempt employee’s normal workweek is less than 40 hours, in which case earned sick leave accrues based on that normal workweek.

[5] The law prohibits employers from delaying an employee’s use of available earned sick leave on the grounds that the employee has not yet provided the requested documentation.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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