If Ache, Sure Achieve—Half 97: Necessary Paid Sick Go away Regulation Coming To New Mexico – Employment and HR
United States:
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
guidance. - 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:
- 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.
- 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
rate. - 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.
- Foreseeable Leave: If the need for leave is
- 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
requires. - 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
employed. - 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
division.
- Notice: Employers must provide employees with
- 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].
Footnotes
1.
Information on the legislation can be found here.
2.
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
workweek.
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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