In New Mexico, an employer is not required to provide employees with vacation benefits, either paid or unpaid. If an employer chooses to provide such benefits, it must comply with the terms of its established policy or employment contract. Wolf v. Sam’s Town Furniture, Inc., 120 N.M. 603 (N.M. Ct. App. 1995)
Also, employers must pay employees for accrued but unused vacation leave at the time the employee separates from employment. Wolf v. Sam’s Town Furniture, Inc., 120 N.M. 603 (N.M. Ct. App. 1995); NM Investigations Manual – Labor Relations Division
Neither New Mexico’s legislature nor its courts have given any significant guidance regarding other potential vacation policy issues. They are silent regarding whether an employer may:
- require an employee to comply with specific requirements to qualify for payment of vacation leave upon separation from employment, such as giving two week’s notice or being employed as of a specific date of the year,
- cap the vacation leave an employee may accrue over time,
- implement a “use-it-or-lose-it” policy requiring employees to use their leave by a set date or lose it.
Although New Mexico’s authorities are silent regarding many vacation policy issues, an employer is likely free to implement the vacation policy of its choosing. See NM Investigations Manual – Labor Relations Division
New Mexico law requires employers to provide eligible employees with paid sick leave. NM Department of Workforce Solutions: Healthy Workplaces Act
An employer in New Mexico may be required to provide an employee unpaid sick leave in accordance with the Family and Medical Leave Act or other federal laws.
New Mexico law does not require private employers to provide employees with either paid or unpaid holiday leave. In New Mexico, a private employer can require an employee to work holidays.
A private employer does not have to pay an employee premium pay, such as 1½ times the regular rate, for working on holidays, unless such time worked qualifies the employee for overtime under standard overtime laws. If an employer chooses to provide either paid or unpaid holiday leave, it must comply with the terms of its established policy or employment contract.
Visit our New Mexico State Holidays page for a list of holidays recognized and observed by the state of New Mexico as well as information regarding state laws governing holiday leave for public employers and employees.
Jury Duty Leave
An employer is not required to pay an employee for time spent responding to a jury summons or serving on a jury.
An employer may not discharge, threaten, or otherwise coerce an employee because the employee receives a summons for jury service, responds to the summons, serves as a juror, or attends court for prospective jury service.
An employer may not require or request an employee to use annual, vacation or sick leave for time spent responding to a summons for jury service, participating in the jury selection process, or serving on a jury.
New Mexico law allows employees whose workday begins within two (2) hours of the polls opening and ends less than (3) hours before polls close to be entitled to up to two (2) paid hours of leave to vote. The employer can set the time for leave to vote.
An employer who violates this law may be assessed a fine not less than $50 nor more than $100. NM Statute 1-12-42
New Mexico law does not require employers to provide employee bereavement leave. Bereavement leave is leave that is taken by an employee due to the death of another individual, usually a close relative. Employers may choose to provide bereavement leave and may be required to comply with any bereavement policy or practice it maintains.
Family and Medical Leave
New Mexico employers are required to provide employees with leave consistent with the federal Family and Medical Leave Act (FMLA).
Under federal law, employers with a minimum of 50 employees must provide 12 weeks of unpaid leave to employees per 12-month period. This amount of leave renews every 12 months, so long as employees continue to meet the eligibility requirements.
The eligibility requirements for the Family Medical Leave Act are as follows:
- Employees must have worked for their employer for at least one year
- Employees must have worked a minimum of 1250 hours the previous year
- Employees must work in a location with 50+ employees within a 75-mile radius
The federal Family Medical Leave Act provides employees time off for the following reasons:
- Recuperating from a severe ailment
- Caring for a family member with a serious ailment
- Bonding with a new child
- Handling extenuating circumstances stemming from an ailment
- Caring for a military family member with an illness or injury
In instances where employees are caring for an ill or injured military family member, they receive 26 weeks of leave within 12 months. This amount of leave is available per family member per injury.
Employees are also granted additional paid sick leave through the New Mexico paid time off laws and the New Mexico Healthy Workplaces Act.
Military members in New Mexico are entitled to the same benefits that the Uniformed Services Employment and Reemployment Rights Act (USERRA) offers, including:
- Employees have the right to continue group healthcare benefits for 24 months of their leave
- Upon return, employees must be reinstated to the same (or equivalent) previously held position
- Employees must receive up to five years of unpaid leave for military service (with exceptions)
There are additional types of leave military members can consider in New Mexico. Members of the armed forces are entitled to one year of unpaid leave for hospitalization after discharge.
Employers must provide their employees with similar positions once they return to work. Additionally, whether an employee is returning from military medical leave or active duty, employers cannot fire them within one year.
It is the responsibility of employees to request their original jobs back within 90 days of completing their service.