Under the New Mexico sick leave law, all employees are allowed to earn and use up to 64 hours of paid sick leave per benefit year, as signed by Governor Michelle Lujan Grisham.
The law covers full-time, part-time, seasonal, and temporary employees. On the other hand, it does not cover freelancers or independent contractors unless otherwise established in an employer’s company policy.
All private employers with at least one employee are covered by the New Mexico sick leave law, otherwise known as the Healthy Workplaces Act or HWA. On the other hand, public employers, whether they be of the federal government, local jurisdiction, or state, are not required to comply with the HWA.
Sick and Safe Leave Accrual
Under the Healthy Workplaces Act, the employee is granted a sick leave accrual rate of one hour for every 30 hours that an employee has worked.
Employers reserve the right to provide a higher rate of accrual. However, these may not be less than the minimum requirements of the New Mexico sick leave law.
Nonetheless, an employee may only earn a total of 64 hours of paid sick time in a 12-month period. Alternatively, an employer may also frontload the total sick leave hours at the beginning of the benefit year.
Carry Over from Year to Year
An employee’s unused paid sick leave must be carried over to the following benefit year. However, the carry-over provisions state that the maximum hours of paid sick leave an employee can earn is still limited to the annual 64-hour maximum.
The employer reserves the right to define when the year begins. An employer may use the calendar year, fiscal year, benefit year, or any other fixed 12-month period.
An employee may use the paid sick leave for any of the following reasons:
- The employee needs to tend to his or her own or a family member’s health needs, which include mental and physical illness, injury, or medical care
- The employee or a family member is to seek psychological treatment or a related medical condition
- The employee or family member is to get a medical diagnosis for an illness
- The employee needs to attend a child care meeting to discuss the child’s health
- The employee or a family member is a victim of domestic abuse or sexual assault, as well as stalking
Family Member Defined
Under the New Mexico sick leave law, the list of family members includes:
- Domestic partner
- Child (Biological, stepchild, foster child, adopted, a child whom the employee is an in loco parentis or has a legal ward)
- Parent (Biological, stepparent, foster, adoptive, or an individual who stood as an in loco parentis or a legal guardian when the employee was a minor child)
- Siblings (Biological, stepsibling, adopted, or foster)
- Any individual considered as a family member by the employee or the employee’s domestic partner or spouse
New Employees Wait-to-Use Period
New employees may use the paid sick leave under the HWA as soon as they earn it. Some are eligible starting on the first day of employment if the employer chooses to frontload the health care benefit. No waiting period of accrual is necessary to be eligible for the leave.
Sick and Safe Leave Use Requirements and Limits
The HWA paid sick leave is only limited to employees who are not provided with the same number of leaves or none at all. In the event that the employer has other paid-time-off policies that equal or exceed the healthcare benefits, requirements, conditions, and terms of the Healthy Workplaces Act, the need to implement this new law is forfeited.
Consequently, an employee must not be required by the employer to find a replacement worker who will cover the work while the employee is on leave.
Payment for Accrued Sick and Safe Leave Upon Separation from Employment
Upon separation from employment, an employer may pay for the accrued hours of sick leave to the employee. However, they are not required to do so and will not receive penalties if they choose not to.
Alternative Eligible Leave Policies
In addition to the HWA or the Healthy Workplaces Act, eligible employees may also take any of these alternative leaves:
Family and Medical Leave Act
The FMLA is a federal law allowing employees to take up to 12 weeks of unpaid leave for a serious health condition or up to 26 weeks of unpaid leave for military reasons.
New Mexico Human Rights Act
The New Mexico Human Rights Act is a state law that protects employees against discrimination related to childbirth, pregnancy, and other medical conditions. Employers are also bound by law not to do any retaliation against employees who take such leaves.
Under this law, pregnancy and childbirth must be considered a temporary disability for any and all employment-related reasons it may serve. Ergo, employees shall receive the same benefits provided to individuals with temporary disabilities.
Employee Notice of Use Requirements
Employees who plan to use the HWA paid sick leave policy can inform the employer through a written or electronic notice. Alternatively, they may also do so verbally. The request may include the supposed length of the leave that the employee wishes to use but is not required if the employee is unsure.
On the other hand, urgent medical emergencies, such that the employee was unable to foresee the need to use the leave, the employee may inform the employer as soon as he/she is able to.
Nonetheless, the employee’s use of the leave shall, as much as possible, be scheduled so as not to unreasonably disrupt the operations of the employer.
Verification of Proper Use
For validation purposes, an employer may require verification of proper use. This can be in the form of a signed document from a health care professional if the employee uses the leave for more than two days.
On the other hand, an employee who wishes to use the New Mexico sick leave law because of domestic abuse against himself or herself or a family member may provide his or her employer with any of the following documents:
- Police report
- A written statement signed by a victim services organization
- Court-issued document
The employee will only have to provide the documentation upon the request of the employer. However, the HWA states that an employer does not have the right to postpone the leave on the basis that the documentation has not yet been provided.
As part of the law’s recordkeeping requirements, any document relating to an employee’s use of the HWA paid sick leave must be kept by the employer for up to two years. These documents must be made available upon the request of a government authority.