New Mexico Enacts Paid Sick Leave Law

New Mexico's new Paid Sick Leave Law becomes effective on July 1, 2022. The Healthy Workplaces Act ("HWA") was signed into law by Governor Grisham on April 27, 2021 and requires private employers to provide paid sick leave to all employees, whether the employees are full-time, part-time, seasonal, or temporary, at the employee's usual hourly rate. This law affects all New Mexico employers with at least one employee.

Under the HWA, employers must allow employees 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 and paid at the employee's regular hourly rate. Employees may carry over any accrued, unused ESL, but an employer is not required to permit an employee to use more than 64 hours in a 12 month period. 

If an accrual process is too difficult for an employer, the HWA permits employers to frontload ESL by granting the full 64 hours to employees on January 1 of each year or a prorated amount for employees who begin employment after January 1 of a calendar year. Below you will find a full breakdown of HWA's ESL.

Contents:

• Applicability
• Accrual and Carry Over
• Use of Sick Leave
• Employer & Employee Notice Requirements
• Employee Documentation
• Paid Time Off Policies
• Payout
• Transfer and Successor Employer
• Interference and Retaliation
• Resources

Applicability

As of July 1, 2022, New Mexico’s paid sick leave law applies to all employers that have one or more employees in New Mexico. The sick leave law applies to all employees, including part-time, seasonal, and temporary employees, except for certain railroad employees. Misclassifying a worker as an independent contractor to avoid providing them with paid sick leave is specifically prohibited.

Accrual and Carry Over

Employees accrue one hour for every 30 hours worked. Exempt employees can be assumed to work 40 hours per week unless their normal workweek is less, in which case accrual can be based on their normal schedule.

Accrual begins immediately upon employment or July 1, 2022, whichever is later.

The law doesn’t specifically allow employers to cap annual accrual. Unused sick leave must carry over from one year to the next.

Instead of hour-by-hour accrual, employers may choose to provide sick leave as a lump sum of 64 hours on January 1 of each year (a.k.a. frontloading). (As written, the law says frontloading must happen on January 1, but we anticipate that any benefit-year basis will be acceptable.) Employers may prorate the frontloaded amount for new hires. The law doesn’t say whether employers have to carryover unused sick leave if frontloaded. 

Use of Sick Leave

Employers may cap use of sick leave at 64 hours per benefit year. A benefit year is any consecutive twelve-month period the employer designates for employees to use sick leave (e.g., calendar year, work anniversary).

Employees are entitled to use paid sick leave:

• For the employee’s mental or physical illness, injury, or health condition, including for a medical diagnosis, care, or treatment or preventive medical care
• To care for their family member with a mental or physical illness, injury, or health condition, including for a medical diagnosis, care, or treatment or preventive medical care
• For meetings at their child’s school or place of care related to the child’s health or disability
• For certain reasons when they or their family member is a victim of domestic abuse, sexual assault, or stalking (see below)

The law specifically says that employers can’t require employees to use other paid leave before using sick leave.

Family Member
Family member means an employee’s spouse or domestic partner or a person related to an employee or their spouse or domestic partner as:

• A child, whether biological, adopted, foster, step, legal ward, or a child to whom the employee stands in loco parentis
• A parent, whether biological, foster, step, adoptive, legal guardian, or a person who stood in loco parentis when the employee was a minor
• A grandparent
• A grandchild
• A sibling, whether biological, foster, step or adopted
• A spouse or domestic partner of a family member
• A person whose close association with the employee (or the employee’s spouse or domestic partner) is the equivalent of a family relationship

Domestic Violence
Employees may use sick leave when they or their family is a victim of domestic abuse, sexual assault, or stalking to:

• Obtain medical or psychological treatment or other counseling
• Relocate
• Prepare for or participate in legal proceedings
• Obtain services related to the domestic abuse, sexual assault, or stalking

Increments, Pay, and Replacement
Employers must allow employees to use sick leave in one-hour increments or the smallest increment that the employer uses to track absences or use of other time, whichever is smaller. 

When sick leave is used, it must be paid at the employee’s normal rate of pay and with the same benefits or minimum wage, whichever is greater.

Employers can’t require employees to search for or find their own replacement to use sick leave.

Notice Requirements

Employer Notice

Employers are required to provide notice upon hire of their rights under New Mexico’s sick leave law. The notice must be in English, Spanish, or the employee’s first language if it’s spoken by 10% or more of employees, as requested by the employee. 

In addition, employers must display a poster in each worksite where employees can easily read it. The notice must be in English, Spanish, and the employee’s first language if it’s spoken by 10% or more of employees. 

The Labor Relations Division of the New Mexico Department of Workforce Solutions (the division) will provide model notices and posters employers can use to satisfy these requirements. 

For employers who create their own notices and posters, they must include the following information:

• The employee’s right to earned sick leave
• How sick leave is accrued and calculated
• The terms of using sick leave under the sick leave law
• That retaliation against employees for using sick leave is prohibited
• The employee’s right to file a complaint with the division if their employer denies them sick leave they’re entitled to or retaliates against them 
• All means of enforcing violations of the sick leave law

Employers are required to keep records of each employee’s hours worked and use of sick leave for at least two years. 

Note: Information regarding paid sick leave recordkeeping requirements is available on the New Mexico Recordkeeping Requirements page.

Employee Notice

Employees may request sick leave orally or in writing. Employers can require employees to provide the expected duration of their absence when possible.

If an employee’s need for sick leave is foreseeable, employers can require the employee to make a reasonable effort to provide advance notice and to make a reasonable effort to schedule their leave to avoid unduly disrupting the employer’s operations.

If an employee’s need for sick leave is not foreseeable, employers can require notice as soon as practicable. 

Employee Documentation

Employers may require an employee to provide reasonable documentation of the need for leave when they have missed two or more consecutive workdays. 

“Reasonable documentation” includes a note signed by a healthcare professional stating the amount of leave needed and for leave because of domestic abuse, sexual assault, or stalking, any of the following:

• A police report
• A court-issued document
• A signed statement from any person (e.g., the employee, an attorney, a clergy member) that the employee took sick leave for a covered reason related to domestic abuse, sexual assault, or stalking

The employee may choose which type of documentation to provide from the list above. 

Employers can’t require the documentation to be in a particular format, notarized, or in a language other than the employee’s native language. In addition, employers can’t require the documentation to explain the nature of a medical condition or the details of the domestic abuse, sexual assault, or stalking.

Employees are entitled to begin using sick leave before they provide the documentation, although employers can require them to provide it in a “timely manner.”

All information an employer receives related to the employee’s reasons for taking sick leave must be treated as confidential and can’t be disclosed, except:

• If the employee gives permission;
• As necessary for the employer to validate insurance disability claims;
• For accommodations consistent with the federal Americans with Disabilities Act; or
• As required by a court order.
  
  

Paid Time Off Policies

Employers can use a paid time off policy (or another paid leave policy) to meet their obligations to provide paid sick leave only if it meets or exceeds the requirements of the sick leave law (e.g., accrual, terms of use). 

Payout

Employers aren’t required to pay out unused sick leave at the end of employment unless they have a policy, practice, or promise to pay it out. Employees rehired within one year of termination must have any previously accrued but unused sick leave restored and made available for use immediately.

Transfer and Successor Employer

Employees are entitled to keep and use their accrued paid sick leave if they are transferred to a separate division, entity, or location or if a different employer succeeds (takes the place of) the existing employer.

Interference and Retaliation

Employers are prohibited from denying employees the right to use paid sick leave and from discriminating or retaliating against an employee for exercising (or trying to exercise) their sick leave rights, including complaining about an alleged violation of the sick leave law. This includes, for example, discouraging an employee from using or trying to use their sick leave rights by:

• Taking or threatening to take an adverse action against them
• Limiting their sick leave rights in a policy or contract
• Counting an employee’s sick leave absence in a way that will negatively affect the employee, such as under an attendance policy
  

Resources

New Mexico Paid Sick Leave 

Understanding New Mexico’s Healthy Workplaces Act and Employer Obligations:

Business Policy Compliance Checklist for Healthy Workplaces Act