New Mexico has enacted legislation (House Bill 20), also known as the Healthy Workplaces Act ("the Act"), that requires employers to provide paid sick and safe leave to employees. The Act takes effect on July 1, 2022.
The Details
Accrual:
Employees must accrue at least one hour of paid sick leave for every 30 hours worked, up to 64 hours per year. Alternatively, employers may elect to frontload all 64 hours at the beginning of each year. Employees may use any accrued leave in the smallest increment allowed by the employer's payroll system, or hourly, whichever is smaller.
Employees who are exempt from overtime are assumed to work 40 hours per workweek for the purposes of earned sick leave accrual, unless their normal workweek is less than 40 hours. In such cases, sick leave accrues based on their normal workweek.
Carryover:
Unused leave may carry over into the following year, but employers are not required to allow employees to use more than 64 hours in a 12-month period. The Act does not require employers to pay out unused leave at the time of termination, however unused leave must be reinstated when an employee is rehired within 12 months.
12-Month Period:
· An employer may choose any one of the following methods for determining the 12-month period in which earned sick leave may be used:
· The calendar year;
· Any fixed 12-month leave year, such as a fiscal year, a year required by other law or a year starting on an employee's anniversary date;
· The 12-month period measured forward from the date an employee first uses earned sick leave; or
· A rolling 12-month period measured backward from the date an employee uses any earned sick leave.
Use:
The Act allows employees to use the leave for:
· The diagnosis, care, or treatment of, or recovery from mental or physical illness, injury or other adverse health condition, or for preventive medical care for themselves or a family member;
· Meetings at their child's school or place of care related to the child's health or disability; or
· Reasons related to domestic abuse, sexual assault, or stalking, including the need to obtain services, relocate, obtain medical or psychological treatment or counseling, or prepare for or participate in legal proceedings.
The law prohibits employers from requiring employees to use other types of paid leave before they use leave under the Act.
Employee Notice and Documentation:
Employers may require employees to provide as much advance notice as practical, and when possible, the expected duration of their absence. Employers may also require employees to make a reasonable effort to schedule their leave so it does not unduly disrupt business operations.
Employers are prohibited from requiring an employee, as a condition for using leave, to search for or find a replacement worker to cover the hours during which an employee is using their leave.
For leave lasting two or more consecutive days, employers may require reasonable documentation that the leave is being taken for a covered purpose. For examples of reasonable documentation, see the full text of the law. All information an employer obtains related to an employee's reasons for taking sick leave must be treated as a confidential medical record.
Pay:
Earned sick time must be compensated at the employee's same hourly rate, with the same benefits (including health care benefits), as an employee would normally earn for hours worked.
Employer Notice Requirements:
Employers must provide paid sick leave information to employees, in written or electronic form, at the start of their employment that explains:
- Employees have a right to leave;
- How leave is accrued and calculated;
- The terms under which an employee may use leave;
- That employers are prohibited from retaliating against employees for using leave;
- Employees have the right to file a complaint if they're denied leave or retaliated against; and
- The means for enforcing violations of the Act.
In each establishment, employers must also display a poster in a conspicuous and accessible place that contains the above information. The poster must be in English, Spanish, or any language that is the first language spoken by at least 10% of the employer's workforce.
The state has created a model poster that employers may use to fulfil the poster and separate notification requirements.
Recordkeeping:
Employers must retain records documenting hours worked and leave taken by employees for at least four years.
Relation to Existing PTO Policies:
Employers are not required to provide leave under the Act if they already have a paid time off policy that provides an amount of earned sick leave sufficient to meet the accrual requirements of the Act and that may be used for the same purposes and under the same terms and conditions as the Act.
Anti-Retaliation:
Employers are prohibited from taking or threatening any adverse action against an employee for exercising or attempting to exercise their rights under the Act.
Next Steps:
Employers with employees in New Mexico should review their policies, forms, practices, and supervisor training to ensure compliance with House Bill 20 by July 2022. Please contact your dedicated service professional with any questions.