If Ache, Sure Achieve—Half 97: Necessary Paid Sick Go away Regulation Coming To New Mexico – Employment and HR

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If Pain, Yes Gain—Part 97: Mandatory Paid Sick Leave Law Coming To New Mexico

27 April 2021

Seyfarth Shaw LLP

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Seyfarth Synopsis: Earlier this
month, New Mexico passed a statewide paid sick leave law, requiring
all private employers with one or more employees to provide
eligible employees with paid sick leave.  The law becomes
effective July 1, 2022.

On April 7, 2021, Governor Michelle Lujan Grisham signed into law the New Mexico Healthy
Workplaces Act (the “Act”), House Bill 20,1 which
requires covered employers to provide eligible employees with paid
sick leave and permits use of up to 64 hours of paid sick leave per
year.  New Mexico is the sixteenth state to enact a statewide
paid sick leave or paid time off (“PTO”) mandate, joining
a number of neighboring or nearby states, including Arizona,
California, Colorado and Nevada.2 The new statewide law goes into
effect on July 1, 2022.

This is the second paid time off law to be passed in New
Mexico.  The first such law was the Bernalillo County Employee
Wellness Act,3 which after multiple amendments and
at least one delay, went into effect on October 1, 2020. 
Neither the Act nor the Bernalillo County website provide
information on whether the Bernalillo County mandate will remain in
effect in light of the passage of the statewide law.

Here are key highlights of the Act:

  • Employer Coverage: Employer coverage under the
    Act is broad. The Act defines “employer” 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.
     The definition of “employer” does not include
    public employers, such as the United States, the state, or any
    political subdivision of the state.
  • Employee Definition: Employee is broadly
    defined to include an individual employed by an employer for
    remuneration, including part-time, seasonal, and temporary basis
    employees. The definition, however, does not include employees of
    an employer subject to Title II of the federal Railway Labor Act or
    employees covered by the federal Railroad Unemployment Insurance
    Act or the Federal Employers’ Liability Act. 
  • Accrual Rate: Employees may begin to accrue
    earned sick leave on July 1, 2022 (i.e., the law’s effective
    date) or the employee’s commencement of employment, whichever
    is later. Employees accrue one hour of earned sick leave for every
    30 hours worked.4
  • Frontloading: Rather than permit employees to
    accrue earned sick leave, an employer can elect to grant employees
    a lump-sum grant of 64 hours of earned sick leave for the upcoming
    year on January 1 of each year. The Act provides that if an
    employee’s employment begins after January 1 of a given year,
    employers may provide a pro rata portion of the 64 hours of earned
    sick leave for use during the remainder of that year.  It is
    unclear at this time whether frontloading gets rid of an
    employer’s year-end carry over obligations (see below).
     Hopefully this and other open questions from the Act will be
    addressed in forthcoming regulations and administrative
  • Usage Waiting Period: It does not appear that
    the Act sets a waiting period for when newly hired employees can
    begin using earned sick leave. The Act states that employees can
    begin to use available earned sick leave on the later of July 1,
    2022 or the employee’s commencement of employment.
  • Usage Cap: Employees are not entitled to use
    more than 64 hours of earned sick leave per 12-month period. By
    comparison, this annual usage cap is significantly greater than the
    annual usage cap standards imposed by surrounding states’ paid
    sick leave laws, e.g. Arizona (40 hours), Colorado general
    paid sick leave mandate (48 hours); Nevada PTO law (40 hours), and
    California (24 hours / 3 days).
  • Year-End Carryover: The Act does not appear to
    set a cap on the amount of earned, unused sick leave that carries
    over at year-end.
  • Calendar Year: An employer may use one of the
    following methods for determining the 12-month period for which
    earned sick leave may be used: (1) the calendar year; (2) any fixed
    12-month leave period, such as a fiscal year, a year required by
    other law, or a year starting on an employee’s anniversary
    date; (3) the 12-month period measured forward from the date of an
    employee’s first use of earned sick leave occurs; or (4) a
    rolling 12-month period measured backward from the date an employee
    uses any earned sick leave.
  • Reasons for Use: An employee may use available
    earned sick leave for the following covered reasons:
  1. 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;
  2. 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.
  3. Meetings at the employee’s child’s school or place of
    care related to the child’s health or disability; or
  4. 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.
  • Covered Family Members: Under the Act, family
    member includes: (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.
  • Rate of Pay: Earned sick leave must be paid at
    the same hourly rate and with the same benefits, including health
    care benefits, as an employee normally earns during hours worked;
    however, it cannot be less than the applicable minimum wage
  • Notice to Employer: Employers must provide
    earned sick leave upon the oral or written request of an employee
    or an individual acting on the employee’s behalf.

    • Foreseeable Leave: If the need for leave is
      foreseeable, the employee must make a reasonable effort to provide
      oral or written notice in advance. The Act also provides that the
      employee must make a reasonable effort to schedule the use of
      earned sick leave in a manner that does not unduly disrupt the
      operations of the employer.
    • Unforeseeable Leave: If the leave in
      unforeseeable, the employee must notify the employer of their need
      for leave orally or in writing as soon as practicable.
  • Documentation: An employer may require
    reasonable documentation that earned sick leave has been used for a
    covered purpose if the employee uses available earned sick leave on
    two or more consecutive work days. The Act provides examples of
    documentation that is considered reasonable.5
  • Pay Out on Termination: Employers are not
    required to pay out accrued, unused earned sick leave upon an
    employee’s termination, resignation, retirement, or other
    separation from employment. However, if an employee is separated
    from employment and rehired within 12 months of separation by the
    same employer, the employer must reinstate previously accrued,
    unused earned sick leave.
  • Compliance Using Existing Policy: Employers
    with paid time off policies can use those policies to comply with
    the Act if the policy (1) makes available an amount of earned sick
    leave that meets the accrual requirements of the Act; and (2)
    permits that the time be used (a) at minimum the same purposes and
    (b) under the same terms and conditions that the Act requires.
  • Coordination of Benefits: The Act notes that
    an employer cannot require an employee to use other paid leave
    before the employee uses earned sick leave under the Act.
  • Collective Bargaining Agreements: The Act does
    not appear to provide an exemption for employees who are covered by
    collective bargaining agreements. In fact, the Act indicates that
    employers must provide employees with additional sick leave, as
    required under the law, unless paid time off provided in a
    collective bargaining agreement may be used for (1) the same
    purposes and (2) under the same terms and conditions as the law
  • Notice and Posting:
    • Notice: 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.
    • Posting: Employers must display a poster that
      contains the information listed above in a conspicuous and
      accessible place in each establishment where employees are
    • Languages: Notice must be provided in English,
      Spanish, or any language that is the first language spoken by at
      least 10 percent of the employer’s workforce, as requested by
      the employee. Similarly, the poster must be displayed in English,
      Spanish, and any language that is the first language spoken by at
      least 10 percent of the employer’s workforce.
    • Obtaining Model Notice/Poster: The division
      will create and make available model notices and posters in
      English, Spanish, and other language deemed appropriate by the
  • Recordkeeping: Employers must retain records
    documenting hours worked by employees and earned sick leave 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.

Employer Takeaways:

Before the New Mexico statewide Healthy Workplaces Act’s
July 1, 2022 effective date, we expect further guidance by the New
Mexico labor relations division of the workforce solutions
department. In the meantime, employers should consider taking the
following steps:

  • Monitor the New Mexico labor relations division of the
    workforce solutions department’s website for the release of
    further guidance.
  • Review sick leave or PTO policies and procedures to ensure that
    they meet at least the minimum requirements of the Act.
  • Develop a New Mexico paid sick leave policy that complies with
    the Act for any employees who are not covered under the
    employer’s existing paid sick leave or PTO policies.
  • Review and, as necessary, revise anti-retaliation, attendance,
    conduct, and discipline policies to prevent retaliation against
    employees for taking time off under the Act.
  • Train supervisory and managerial employees, as well as HR, on
    the Act’s requirements.

With the paid leave landscape continuing to expand and grow in
complexity, companies should reach out to their Seyfarth contact
for solutions and recommendations on addressing compliance
with  paid leave requirements. To stay up-to-date on Paid Sick
Leave developments, click here to sign up for Seyfarth’s Paid
Sick Leave mailing list. Companies interested in Seyfarth’s
paid sick leave laws survey should reach out to [email protected].


Information on the legislation can be found here.

Including New Mexico, the states that have enacted a statewide
general non-COVID-19 paid sick leave or PTO mandate include: (1) Arizona; (2) California; (3) Colorado; (4) Connecticut; (5) Maine (PTO law); (6) Maryland; (7) Massachusetts; (8) Michigan; (9) Nevada (PTO law); (10) New Jersey; (11) New Mexico; (12) New York; (13) Oregon; (14) Rhode Island; (15) Vermont; and (16) Washington. In addition, there are
non-COVID-19 paid sick leave mandates in (17) Washington, D.C. and nearly two dozen municipalities.

3. A
summary of the initial version of the Bernalillo County, NM
mandatory PTO ordinance can be found here.

4. The
law notes that employees who are exempt from the FLSA’s
overtime requirements are assumed to work 40 hours per workweek for
purposes of earned sick leave accrual, unless the exempt
employee’s normal workweek is less than 40 hours, in which case
earned sick leave accrues based on that normal

5. The
law prohibits employers from delaying an employee’s use of
available earned sick leave on the grounds that the employee has
not yet provided the requested documentation.

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.

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