New Mexico Latest State to Enact a Paid Sick Leave Law

On April 7, 2021, New Mexico Governor Michelle Lujan Grisham signed the Healthy Workplaces Act (HWA) into law. The HWA makes New Mexico the latest state to enact an earned sick leave (ESL) statute. The HWA requires employers to provide ESL benefits to New Mexico employees that need leave for specified reasons beginning January 1, 2022.

Governor Lujan Grisham signing the HWA authorizes ESL for those working in New Mexico.

On April 8, 2021, New Mexico’s Office of the Governor issued a press release announcing the new ESL law’s enactment. The effective date of the HWA is July 1, 2022. The measure requires employers to allow New Mexico employees to accrue at least one hour of ESL for every 30 hours worked. There is some flexibility in how employers can implement the law, and employers may elect to provide a more generous leave policy. Below is a summary of whom the law covers, the covered reasons for leave requests and some of the HWA’s other requirements.

The law defines covered employers and employees broadly.

The law defines a covered employer as an individual, partnership, association, corporation, business trust, legal representative, or any organized group of persons employing one or more employees at any one time, acting in the interest of an employer in relation to an employee. Under the HWA, the definition of employer does not include the United States, the state of, or any political subdivision of, New Mexico. Any covered employer must allow a covered New Mexico employee to accrue at least one hour of ESL for every 30 hours worked. A covered New Mexico employee means an individual employed to work in New Mexico by an employer, including an individual employed on a part-time, seasonal or temporary basis.

The HWA entitles employees to use up to 64 hours of ESL per 12-month period.

The HWA defines a year as a 12-month period in which an employee may use their ESL. Employers can choose how they define a “year” in which employees must use their ESL hours. Under the HWA, an employer can establish that a year means the calendar year, the employer’s fiscal year, a forward-rolling 12-month period based on the employee’s hiring date anniversary, or a backward-rolling 12-month period measured from when the employee requests ESL. There is no waiting period for using leave, so as soon as an employee earns ESL hours, they can use those hours. The pay rate for ESL hours must equal an employee’s regular rate of pay. Employees may carry over any accrued, unused ESL from one year to the next, but their employer is not required to permit them to use more than 64 hours of ESL per 12-month period.

The HWA requires an employer to permit an employee to take paid leave for the following reasons.

An employee may request ESL for any covered personal reason or to care for a family member. The HWA defines family member broadly, including a spouse or domestic partner, an immediate family member, like a child (biological, adoptive or foster), parent, sibling, grandparent, guardian or someone who stood in as a parent for the employee when they were a minor. It also includes an individual whose close association with the employee or the employee’s spouse or domestic partner is the equivalent of a family relationship. Employees may request leave for a:

• 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.

The law imposes documentation requirements on both the employee and employer.

The HWA does not permit employers to require employees to use other types of paid leave before they use HWA ESL. Employees must provide an oral or written request to their employer in order to receive ESL. This request must include the absence’s expected duration. The law applies a reasonableness effort standard to requests for foreseeable absences. Employers and employees scheduled use in a manner that does not unduly disrupt the employer’s operations. For unforeseeable absences or emergencies, employees must provide notice to their employer as soon as practicable. When ESL is for two or more consecutive days, employers may request that employees provide reasonable documentation. At the commencement of employment, employers must give their New Mexico employees either written or electronic notice of:

• Their right to leave;
• The manner in which leave is accrued and calculated;
• The terms of leave used under the law;
• The law’s prohibition on retaliation against employees for leave use;
• An employee’s right to file a complaint with the state labor department if the employer denies leave or retaliates against an employee; and
• All means of enforcing violations of the law.

The state is drafting a model mandatory notice HWA Poster that employers must place in a conspicuous and accessible location in each establishment where employees are employed. Generally, the individual disclosure to an employee and the workplace post must appear in English, Spanish or any language that is the first language spoken by at least 10% of the employer’s workforce.

The HWA becomes effective in 2022. Covered employers should expect more guidance from the state as the effective date draws near. Employers should consult with their payroll and leave administrator, as well as their labor law counsel, before implementing any changes to the existing paid leave policy.

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