New Mexico enacts paid sick leave law
Accruals
Beginning July 1, 2022, New Mexico employees must accrue one hour for every 30 hours worked and can use up to 64 hours per year. Unused sick leave must carry over subject to the annual 64-hour maximum, but doesn’t have to be paid at termination. Employees rehired within 12 months must have their unused accruals reinstated. Accruals begin on the date of hire starting on or after the law’s effective date. Alternatively, an employer can forgo accruals by front-loading 64 hours each year and prorating for midyear hires. Employers may use a calendar year, a rolling 12-month period backward from the date of use, or any fixed 12-month leave year, including one measured from the employee’s first use of leave.
Usage and employee notice
Employees may annually use up to 64 hours of paid leave as it accrues for:
- Their own or a family member’s health needs, including preventive care or a physical or mental health illness, injury, or condition
- A child’s health- or disability-related school or child care meetings
- Matters related to their own or a family member’s domestic abuse, sexual assault or stalking
Employees must provide an oral or written request in advance of foreseeable leave or as soon as practical. When possible, the request should indicate the expected duration of the leave. Employees can take leave in hourly increments or, if smaller, the smallest increment the payroll system allows.
Employers can’t condition leave on the employee finding a replacement or require the use of other paid leave first. Employers may require documentation that the leave is for a covered purpose after two or more consecutive days’ absence, but cannot delay sick leave until the employee provides the requested documentation. Employers must keep all information related to paid sick leave confidential and must not disclose that information without permission, unless needed for disability insurance claims or accommodations or required by court order.
Family member
The law defines family members as children, parents, or siblings, including legal wards and blood, foster, step, and in loco parentis relationships; grandparents and grandchildren; and a spouse or domestic partner, along with the spouse’s or partner’s family members. The definition also includes an individual whose close association with the employee, spouse or domestic partner “is the equivalent of a family relationship.”
Independent contractor
Employers are not required to provide accrued paid leave to properly classified independent contractors. The law defines an independent contractor as “a person who agrees to do a certain work where the person who engages the contractor may direct the result to be accomplished but does not have the right to control the manner in which the details of the work are to be performed.” Misclassification of an employee as an independent contractor for sick leave purposes can subject the employer to a penalty of $500 or actual damages, whichever is greater.
Employer notice, posting and recordkeeping
Employees must receive written or electronic notice of their paid sick leave rights and responsibilities on date of hire. In addition, employers must display a poster with paid sick leave information in a conspicuous and accessible place. Both the notice and the poster must be provided in English, Spanish and any other language spoken by at least 10% of the workforce. The Labor Relations Division (LRD) of the Workforce Solutions Department is responsible for creating the notices and posters and making them available to employers. Employers must maintain records documenting employees’ hours worked and sick leave used for 48 months. Each willful failure to meet the notice, poster and recordkeeping requirements can result in a $250 penalty.
Enforcement and penalties
The LRD and the state attorney general’s office will oversee and enforce the law. A civil action against an employer must be brought within three years of the alleged violation, but that time will be tolled during any pending investigation. Failure to compensate an eligible employee for accrued leave could result in the greater of treble missed wages or $500. Unlawful denial of sick leave can result in a $500 penalty or actual damages, whichever is greater. Wrongful retaliation or discharge can result in a penalty of $250 or $500, respectively, in addition to actual damages, including back pay, wages or benefits lost. Recovery in a civil action can include litigation costs and attorney’s fees.
Other key provisions
Other key provisions of the law include:
- An employer with an existing paid leave program that meets or exceeds the hours and usage provisions of the law doesn’t have to provide additional leave.
- State-mandated paid sick leave is in addition to any paid time off provided by a collective bargaining agreement, unless it provides sick leave for the same purposes and under the same terms as the law requires.
- Pay is at the employee’s regular rate with the same benefits, including healthcare benefits.
- Employees’ use of sick leave accrued under the law can’t lead to discipline or any form of retaliation. Rights provided under the law cannot be waived, and retaliation for exercising those rights is prohibited. An employer has the burden of rebutting a prima facie showing of retaliation in a civil action.
Preemption
The Healthy Workplaces Act doesn’t preempt any other law, including local leave mandates or collective bargaining agreements that provide for greater accrual or use of earned sick leave. Only one locality in New Mexico — Bernalillo County — currently has an accrued paid leave ordinance, but others may follow suit.
Bernalillo County
Enacted in 2019, the Employee Wellness Act requires businesses with a physical presence and at least two employees in unincorporated parts of the county to provide at least one hour of paid leave for every 32 hours worked. Employers within Albuquerque, Los Ranchos de Albuquerque and Tijeras — the incorporated communities — are not subject to the ordinance. The ordinance phases in over three years:
- Originally effective July 1, 2020, but delayed three months to Oct. 1 by the county manager, employees can accrue and use up to 28 hours of earned paid leave per year.
- Effective July 1, 2021, employees working for employers with 11 or more employees can accrue and use up to 44 hours of earned paid leave per year.
- Effective July 1, 2022, employees working for employers with 35 or more employees can accrue and use up to 56 hours of earned paid leave per year.
Employees begin accruing paid leave — which can be used for any purpose — on hire or the applicable effective date, whichever is later. A covered employer can impose a 90-day waiting period before leave use. Carryover of unused accrued leave, subject to the annual maximum, is required. Employers do not have to pay unused accrued leave on termination.
The ordinance contains notice, recordkeeping, confidentiality and anti-retaliation provisions. The county enforces the ordinance, and employees may bring a civil action when the administrative process is complete or the county provides authorization. Model posters in English and Spanish, as well as a set of FAQs, are available on the county website.
Since the state law will require paid leave at a greater accrual rate than the Bernalillo ordinance, compliance with the state law alone likely will suffice for employers subject to both mandates. Confirmation from the LRD would be welcome, particularly since the state law is limited to paid sick leave, whereas the county ordinance requires providing accrued paid leave for any purpose.
Employer considerations
The New Mexico mandate includes many of the same provisions and conditions as other states’ paid sick leave laws. Multistate employers should review New Mexico’s law to plan coordinating it with existing paid leave policies and other states’ mandates. While employers providing the same amount of time for the same uses don’t have to add more hours, the state’s notice and posting requirements may apply. Employers with employees in Bernalillo County may want to consult with an employment attorney to determine if compliance with the local ordinance is still required once the state law takes effect. Upcoming regulations may provide additional detail.
Related resources
Non-Mercer resources
- 2021 Ch. 131, HB 20 (New Mexico Legislature, April 8, 2021)
- Press release (Governor’s Office, April 8, 2021)
- Employee Wellness Act (Bernalillo County Code of Ordinances)
Mercer Law & Policy resources
- Paid sick leave mandates continue to expand at state level (Feb. 8, 2021)