Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
On April 8, 2021, New Mexico Governor Michelle Lujan Grisham signed into law House Bill 20, the Healthy Workplaces Act (HWA). This law, effective July 1, 2022, will require all private employers to provide paid leave to employees that they can use for sick time, safe time, or other reasons for themselves or to care for or assist a broad list of family members.
Covered Employer, Employees & Family Members
The law will apply to all private employers and to all employees except employees subject to either Title II (air carriers) of the federal Railway Labor Act (RLA) or the federal Railroad Unemployment Insurance Act (RUIA). While the law does not apply to independent contractors, it expressly prohibits independent contractor misclassification and provides a sick-leave-related cause of action and damages for misclassifying workers.
Under the law, covered family members include an employee’s spouse or domestic partner, other “traditional” family members like children, grandchildren, grandparents, parents, and siblings of an employee or the employee’s spouse or domestic partner, along with an individual whose close association with the employee or the employee's spouse or domestic partner is the equivalent of a family relationship. Note that, unlike some similar laws, a domestic partner need not be “registered”; instead, a domestic partner is an individual with whom the employee maintains a household and a mutual committed relationship without a legally recognized marriage.
Definition of Year
Whether it’s for accrual, carry-over, or use purposes, most paid sick and safe time laws use a “year” standard. Because the standard New Mexico adopts differs from those under other protected paid leave laws, and more closely resembles a standard in the federal Family and Medical Leave Act (FMLA), or a state-level mini-FMLA law, we highlight what a “year” means under the HWA before covering the law’s other substantive requirements.
An employer may choose any one of the following methods for determining the 12-month period in which leave may be used: (a) calendar year; (b) any fixed 12-month leave year, e.g., fiscal year, an employee’s anniversary year; (c) the 12-month period measured forward from the date an employee first uses leave; or (d) a rolling 12-month period measured backward from the date an employee uses any leave. Additionally, under the law, “year to year,” used in the carry-over provisions, must run concurrently with the employer’s elected 12-month period.
Amount of Leave
On July 1, 2022 or when employment begins – whichever is later – employees must accrue at least one hour of sick leave for every 30 hours worked. For accrual purposes, the law assumes employees who are exempt under 29 U.S.C. Section 213(a)(1) of the federal Fair Labor Standards Act work 40 hours each week; however, if their normal workweek involves fewer hours, employers use the normal workweek for accrual purposes.
Indirectly, the law establishes a 64-hour annual accrual cap; this comes from a provision that says employers may instead elect to grant employees the full 64 hours of leave for the upcoming year on January 1 of each year. From this same provision it appears the law might permit traditional frontloading, which allows employers, on the first day of each year, to provide an employee an amount of leave equal to the annual accrual cap and avoid year-end carry-over requirements. Currently, all the law says concerning carry-over is that, at the end of each year, unused leave carries over into the next year. It is hoped that, before July 1, 2022, the state labor department clarifies issues concerning caps on accrual (annual and overall) and carry-over, along with frontloading.
An employer with a paid time off policy that makes available an amount of leave sufficient to meet the law’s requirements that may be used for, at minimum, the same purposes and under the same terms and conditions as the law requires is deemed to comply with the law. For companies with unionized workforces, the law expressly says that on July 1, 2022, HWA sick leave is in addition to any paid time off provided pursuant to a collective bargaining agreement unless that paid time off may be used for the same purposes and under the same terms and conditions as the law requires. The law does not permit companies with unionized workforces to waive compliance with the provisions of the HWA in their collective bargaining agreements.
Reasons for Leave
Once they have leave available, employees will be able to use immediately – i.e., there is no waiting period for new hires – up to 64 hours of leave each year for the following sick time, safe time, and other, 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
- 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.
Under the law, employees may leave use in hourly increments or the smallest increment the employer's payroll system uses to account for absences or use of other time, whichever amount is smaller. Notably, the law contains a provision that will appear familiar to employers subject to COVID-19 emergency paid sick leave laws: employers cannot require employees to use other types of paid leave before they use HWA sick leave.
Requesting & Documenting Leave
Employers must provide leave upon the oral or written request of an employee or an individual acting on the employee's behalf. When possible, this request must include the absence’s expected duration. 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 practicable.
Only when employees use leave on two or more consecutive workdays can employers request “reasonable” documentation to substantiate the employee used leave for a covered purpose, which employees must provide in a timely manner. Note that 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 provision unique to New Mexico’s law is that the signed statement may be written in the employee's native language.
Employers cannot 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 permission or as necessary for validation purposes for insurance disability claims, accommodations consistent with the federal Americans with Disabilities Act (ADA), as required by the HWA or by court order.
Rate of Pay
When employees use HWA sick leave, employers must pay the same hourly rate, with the same benefits, including health care benefits, as employees normally earn during hours worked, but in no case less than the applicable minimum wage, which, in New Mexico, could be the state or, where applicable, local minimum wage, i.e., in Albuquerque, Bernalillo County, Las Cruces, Santa Fe (City & County).
Notice, Posting, Recordkeeping & Paystubs
When employment begins, employers must give written or electronic notice to an employee of the following information: 1) their right to leave; 2) the manner is which leave is accrued and calculated; 3) the terms of leave use under the law; 4) that the law prohibits retaliation against employees for leave use; 5) that employees have the right to file a complaint with the state labor department if the employer denies leave or retaliates against an employee; and 6) all means of enforcing violations of the law. Additionally, in a conspicuous and accessible place in each establishment where employees are employed, employers must display a poster that contains information in the mandatory notice. Generally, the individual notice must, and the poster should, be in English, Spanish or any language that is the first language spoken by at least 10% of the employer's workforce. Employers can comply with both requirements via a model notice and poster the state labor department will create.
Under the HWA, for the immediately preceding 48-month period, employers must retain records documenting hours worked, and leave taken, by employees. A law that predates the HWA, New Mexico Statutes section 50-4-2, requires employers to provide employees a written receipt that sets forth “the total wages and benefits earned by the employee.” It is hoped the state labor department provides clarification concerning what “benefits earned” means, and whether and how this interacts with benefits provided pursuant to the HWA.
Under the law, as a condition of taking leave, employers cannot require the employee to search for or find a replacement worker to cover the hours during which the employee is using leave. As noted above, an employer's failure to provide leave based on its misclassification of an individual as an independent contractor is a violation of the law.
The law contains numerous anti-retaliation protections. For example, employers cannot take or threaten any adverse action whatsoever against an employee that is reasonably likely to deter the employee from exercising or attempting to exercise a right granted pursuant to the law, or because the employee has exercised or attempted to exercise such rights, has reasonably alleged violations of the law, or has raised a concern about violations of the law to the employer, the employer's agent, other employees, a government agency or to the public through print, online, social or any other media. Under the law, retaliation includes applying an absence control policy that counts an employee's leave use as an absence that may lead to adverse action. Additionally, employers cannot count leave use in a way that will lead to discipline, discharge, demotion, non-promotion, less-favorable scheduling, reduction of hours, suspension or any other adverse action. The law also prohibits attempting to require employees to sign a contract or other agreement that would limit or prevent them from asserting rights under the law or that otherwise establishes a workplace policy that would limit or prevent exercising such rights.
Enforcement & Damages
Employees will be able to file administrative charges with the New Mexico Department of Workforce Solution’s Labor Relations Division. Additionally, individually or on behalf of similarly situated employees, an employee can file a lawsuit within three years from the date an alleged violation occurred. Lawsuits can also be filed by an entity with a member who has been affected by a violation, the state labor department, and the attorney general. Employees can be awarded all appropriate legal or equitable relief, along with costs and expenses of suit and reasonable attorneys’ fees. Moreover, an employer that violates the law is liable to affected employees as follows:
- Leave Taken but Not Paid: Three times the wages that should have been paid or $500, whichever is greater;
- Leave Requested but Denied & Not Taken: Actual damages or $500, whichever is greater.
- Replacement Worker: Actual damages or $500, whichever is greater.
- Retaliation (Non-Discharge): Actual damages (including back pay, wages or benefits lost) plus $250 and equitable relief such as rescission of disciplinary measures taken by the employer or other relief as determined by a court of law.
- Retaliation (Discharge): Actual damages (including back pay, wages or benefits lost) plus $500 and reinstatement or other equitable relief as determined by a court of law.
- Willful Notice or Recordkeeping Violation: $250 for each violation.
- Independent Contractor Misclassification: Actual damages or $500, whichever is greater, for each misclassification.
Like other protected paid leave laws, the New Mexico HWA does not require employers to cash out unused leave when employment ends. It does require, however, employers to reinstate this leave to employees rehired within 12 months of employment ending. Additionally, the law addresses paid leave banks when employees transfer or remain employed with a successor employer that takes the place of their original employer.
No (Legal) Effect on Local Laws
Although the New Mexico HWA establishes minimum paid sick and safe time standards statewide, it does not prohibit similar local laws, such as the mandatory paid time off (PTO) ordinance affecting unincorporated areas of Bernalillo County. It remains to be seen whether the county will continue its ordinance after the state law takes effect on July 1, 2022, given the state law requirements in many respects exceed the county mandate. Many expect the state law to have an effect, however, on a proposed paid leave ordinance in Albuquerque. For months – most recently on April 5 – the Albuquerque City Council has delayed its vote on proposed ordinance O-20-39, waiting to see whether the state would enact HB 20. Now that it has, when back in front of the city council on April 19, members may vote to disregard the proposal.
Employers will have more than one year before the law takes effect. During this interim period, they should monitor the state labor department’s website for guidance and proposed rules to implement the law. Those with operations located in unincorporated areas of Bernalillo County should also monitor county webpages for guidance concerning the impact, if any, the statewide law will have on the pre-existing mandatory PTO ordinance. We hope that as July 1, 2022 nears, there will be a more complete picture of the law, providing employers more information and whether and how they must implement or revise their paid leave, and related policies, practices, and procedures, particularly if they operate in multiple jurisdictions with varying paid leave laws.