New Mexico Check-Up: Paid Sick Leave Coming 2022

By Benjamin A. Nucci

Beginning July 1, 2022, New Mexico will require private employers to provide up to 64 paid sick leave hours to their employees each year. The Healthy Workplaces Act (“HWA”) was signed by Governor Michelle Lujan Grisham on April 8, 2021 and brings New Mexico alongside 15 other states with paid sick time laws. Notably, the state-wide law follows Bernalillo County Ordinance 2019-17, which mandates employers within the county provide paid time off. That ordinance took effect July 1, 2020.

Some of the high-level points to note from the HWA include the following:

• Employer. The Act defines “employer” broadly 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. Unlike other states, there is no “step-down” provision for smaller employers. 
• Accrual Rate. Employees accrue earned paid sick leave (“PSL”) at the rate of one hour for every 30 hours worked. Employers are permitted to frontload the employee their full bank of PSL hours in lieu of accrual, provided they do so on January 1. It is unclear whether employers can choose to frontload the hours on a different date commensurate with the employee’s usage “year.” Stay tuned for administrative guidance on this point.
• Usage Cap. Employees are not entitled to use more than 64 hours of earned PSL per 12-month period. Employers may choose any fixed 12-month leave period for determining when leave may be used.
• Permitted Uses. An employee may use available earned sick leave for the following covered reasons:
  • 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;
  • 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;
  • Meetings at the employee’s child’s school or place of care related to the child’s health or disability; or
  • 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.

  A “family member” means (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.
• Carry Over. All PSL hours carry over to the following year. However, employers may still enforce the 64-hour limit on usage in any given year. It remains to be seen if forthcoming regulations and guidance will clarify an employer’s carry over obligations should they chose to frontload hours.
• Pay Out. Employers are not required to pay out accrued, unused PSL upon an employee’s separation from employment. However, if an employee is rehired within 12 months of separation by the same employer, the employer must reinstate previously accrued, unused earned PSL.
• Notification Requirements. 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. Employers must also display a poster that contains the above-mentioned information in a conspicuous and accessible place in each establishment with employees. The poster should be in English, Spanish, and any language that is the first language spoken by at least 10 percent of the employer’s workforce.
• Recordkeeping Requirements. Employers must retain records documenting hours worked by employees and earned PSL 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.

There are many other notable requirements under the HWA. For example, employers with a unionized workforce subject to a Collective Bargaining Agreement are not afforded an exception to the HWA’s requirements. Indeed, the HWA states that those employers must provide additional leave unless the employees are provided paid time off that may be used under the same terms of conditions as PSL provided pursuant to the HWA.

Going forward, New Mexico employers may want to consider undertaking the following:

• Review existing policies to ensure compliance ahead of the July 1, 2022 effective date of the HWA.
• Monitor the New Mexico Workforce Solutions Labor Relations Division website for updates and administrative guidance.
• Educate human resource departments and supervisors as to the HWA’s requirements