New Mexico Enacts Paid Sick Leave Law

On April 7, New Mexico Gov. Michelle Lujan Grisham signed House Bill 20, enacting the Healthy Workplaces Act (HWA), which will require private employers in New Mexico with at least one employee to provide paid sick leave to employees. The new law becomes effective on July 1, 2022.

Under the HWA, employers must allow employees, including part-time, seasonal and temporary workers, to accrue earned sick leave (ESL) at a rate of one hour for every 30 hours worked. Employees may use up to 64 hours of ESL per 12-month period. ESL must be paid at the employee's regular hourly rate. Employees may carry over any accrued, unused ESL; however, "an employer is not required to permit an employee to use more than [64] hours in a [12]-month period."

As an alternative to the accrual process, the HWA permits employers to frontload ESL by granting the full 64 hours to employees on Jan. 1 of each year (or a prorated amount for employees who begin employment after Jan. 1). While the statute does not specify whether frontloading ESL relieves an employer of carryover obligations, future regulations may answer that and other outstanding questions.

Notably, if an employer has a paid time off (PTO) policy that is at least as generous as the HWA, then the employer need not offer additional ESL if the PTO policy provides "an amount of [ESL] sufficient to meet the accrual requirements of the Healthy Workplaces Act and that may be used for at minimum the same purposes and under the same terms and conditions." However, the sick leave required by the HWA is "in addition to any paid time off provided by an employer pursuant to a collective bargaining agreement unless that paid time off provided may be used for the same purposes and under the same terms and conditions as the Healthy Workplaces Act."

Other Key Features

Waiting period. There is no waiting period for accrual or use of ESL. Accrual begins on the first day of employment or the effective date of the HWA (July 1, 2022), whichever is later. Employees may use ESL as it accrues.

Use increments. Employees may use ESL "in the smaller of hourly increments or the smallest increment that the employer's payroll system uses" for other absences.

Qualifying reasons for leave. Employees may use ESL, upon oral or written request, for absences due to:

• The employee's own "(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."
  
• The employee's need to care for a family member'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."
• "Meetings at the employee's child's school or place of care related to the child's health or disability."
• "Domestic abuse, sexual assault or stalking suffered by the employee or a family member of the employee" so long as the leave is required 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 in … (a) through (c) of this [bullet point].

The HWA defines "family member" broadly to include, among others, grandparents, grandchildren, siblings, domestic partners, family members of an employee's spouse or domestic partner, and "individual[s] whose close association with the employee or the employee's spouse or domestic partner is the equivalent of a family relationship."

Employee notice and documentation. If ESL is foreseeable, employees must "make a reasonable effort to provide oral or written notice of the need for such sick leave … in advance" and "to schedule the use of [ESL] in a manner that does not unduly disrupt the operations of the employer. If ESL is unforeseeable, employees must "notify the employer orally or in writing as soon as practicable." For ESL absences of two or more consecutive work days, the HWA states that employers may require employees to provide reasonable documentation showing that the ESL was used for one of the qualifying reasons described above.

Employer notice requirements. The HWA requires employers to notify employees of their rights under the new law by displaying a poster in the workplace and providing a notice to employees upon hire. The state will prepare notices and posters for employers' use in complying with these requirements.

What's Next?

New Mexico employers may want to consider reviewing their sick leave and PTO policies and procedures in light of the HWA's requirements and be prepared to comply with the act when it becomes effective in July of next year.

Kendra Worley Thornton is an attorney with Ogletree Deakins in Greenville, S.C. Nancy S. Lester is an attorney with Ogletree Deakins in Richmond, Va. © 2021Ogletree Deakins. All rights reserved. Reposted with permission.