New Mexico becomes the next state within the US to mandate private employers begin providing paid sick leave to employees. Taking effect on July 1, 2022, New Mexico has enacted the Health Workplaces Act (HWA) (HB 20), which requires employers with one or more employees within the state to provide a paid sick leave benefit.
Amount of Earned Sick Leave
The HWA dictates that all employees must be allowed to accrue and utilize paid sick leave, this would include full-time, part-time, seasonal, and temporary employees. The law requires that employees accrue sick time at a rate of one hour for every thirty hours physically worked by the employee, up to a maximum of 64 hours of earned sick leave (ESL), within a defined 12-month period. An employer may choose any one of the following methods for determining the 12-month period in which leave may be used:
- Calendar year;
- Any fixed 12-month leave year, (e.g., fiscal year, an employee’s anniversary year);
- The 12-month period measured forward from the date an employee first uses leave; or
- A rolling 12-month period measured backward from the date an employee uses any leave.
For those employers opting for the accrual method, at least 64 hours of unused leave must be carried over from year to year. However, employers may limit the amount of sick time that is able to be used within each year to only 64 hours per year, regardless of how much time is available in an employee’s bank. If an employee used some of their paid sick leave during the year and has fewer than 64 hours remaining in their balance, then the employer would have to carry over all remaining unused hours.
Alternatively, employers have the option of frontloading the ESL by providing the complete sick time balance at the beginning of each year, or by giving a pro-rated amount based on the employee’s date of hire. The frontloading method would not require a carryover of time as the 64 hours of required time would simply be reset for the employee’s bank at the beginning of the 12-month period.
Use of Leave
Once ESL becomes available to the employee, they have immediate access to the time in their bank. There is no waiting period before an employee may use any time that has been accrued/provided to them by the employer.
Employees may use sick leave in hourly increments, or the smallest increment of time used within the employer’s payroll system for tracking use of other time away from work. According to the HWA, employees may take leave for one of the following reasons:
- Mental or physical illness, injury, or health condition of employee or family member;
- Medical diagnosis, care, or treatment of a mental or physical illness, injury, or health condition of employee or family member;
- Preventive medical care for employee or family member;
- Absences due to domestic abuse, sexual assault, or stalking suffered by the employee or family member to:
- Obtain medical or psychological treatment or other counseling
- Relocate
- Prepare for or participate in legal proceedings
- Obtain services; or
- Meetings at a child’s school or place of care related to the child’s health or disability.
Requests for Sick Time
Leave may be requested either orally or via a written request from the employee or an individual acting on the employee’s behalf. When feasible, this request must include the absence’s expected duration, and:
- For foreseeable absences, employees must make a reasonable effort to notify their employer in advance of use and schedule use in a manner that does not unduly disrupt the employer’s operations.
- For unforeseeable absences, employees must provide notice as soon as possible.
Documentation of Leave
According to the HWA, when employees use leave consecutively for two or more workdays, an employer may request reasonable documentation to verify the reasons behind an employee taking sick leave and determine if the time used was for a covered purpose. If requested, employees must provide the documentation in a timely manner, however, employers cannot delay the start date for leave based on the fact an employee has not provided documentation substantiating the need for leave.
- For “sick” time purposes, documentation signed by a health care professional indicating the amount of leave taken was necessary is reasonable.
- For “safe” time purposes, employees can choose to provide a police report, a court-issued document or a signed statement from a victim services organization, clergy member, attorney, advocate, the employee, a family member or other person affirming leave was taken for a covered purpose.
A unique requirement of the HWA is that any signed statement submitted by the employee may be written in the employee’s native language.
If documentation is requested, employers may not require the documentation to explain the nature of any medical condition or the details of the domestic abuse, sexual assault or stalking, nor can they require a signed statement to be in a particular format or notarized. All information an employer obtains must be treated as confidential and cannot be disclosed except with the employee’s express authorization or as necessary for validation purposes for insurance disability claims, accommodations consistent with the federal Americans with Disabilities Act (ADA), or as required by a court order.
Employer Notice Requirements
There are a number of requirements that employers have to follow to ensure that their employees are aware of their rights under the newly implemented legislation. For new employees, either a written or electronic notice must be presented and contain the following information:
- The employee’s rights to leave;
- The manner in which leave is accrued and calculated;
- The terms of leave use under the law;
- A section that explains the law prohibits retaliation against employees for leave use;
- A section that identifies employees have the right to file a complaint with the New Mexico Department of Workforce Solutions if the employer denies leave or retaliates against an employee; and
- A description of the means of the state enforcing violations of the law.
In addition to the individual above-mentioned notice requirement, employers will also have to post a similar document along with their other state and federal employment law posters within the workplace. The poster must be up in a “conspicuous and accessible place in each establishment where employees are employed.” Both the poster and notice shall be in English, Spanish, or any language that is the first language spoken by at least 10 percent of the employer’s workforce. However, employees will need to specifically request notice/poster versions other than English. New Mexico has indicated that they plan on issuing sample resources for employers closer to the July implementation date.
Next Steps for Employers
Employers should prepare for the pending implementation by reviewing their current leave policies and making any adjustments in order to ensure proper coordination. Additionally, employers will want to institute training for management and others who are responsible for administering leave to provide a thorough understanding of New Mexico’s ESL legislation. Finally, employers will want to remain privy of any changes that occur on New Mexico’s Department of Labor website, as further guidance becomes available.
HR Works will also continue to monitor this topic and provide updated information as it becomes available.
