As reported here, beginning July 1, 2022, the New Mexico Healthy Workplaces Act (“HWA”) requires employers with at least one employee to provide all employees (i.e., full-time, part-time, seasonal, and temporary employees) up to 64 hours of paid sick leave. The HWA makes no exception for small employers but does exclude public employers.
The HWA mandates one hour of accrued paid sick leave for every 30 hours worked, capped at a total of 64 hours. Paid sick leave hours can be provided via the accrual method or by frontloading the full 64 hours at the beginning of each year. Each employer is free to define the “year” period in which paid sick leave must be used (e.g., calendar year, fiscal year, or a rolling 12-month period).
Sick leave may be used by employees for absences due to various reasons outlined in the Act, some of which include family members’ illness or injury and reasons relating to domestic abuse and sexual assault. Accrued and unused sick leave may carry over but remains capped at 64 hours per 12-month period. As an alternative, employers may frontload available leave time.
There are limitations within the HWA on incremental use and the employer’s ability to require an employee to arrange for their replacement during the period of absence. Employers may request certification of the need for leave, whether the request is received orally or by written request, if the employee’s request uses at least two consecutive workdays of leave time. Employers should be cautious in requesting certification making clear it should not provide an explanation/diagnosis of any medical condition or abuse, assault or staking situation.
The HWA does take into consideration an employer’s existing paid time off policy (PTO) if it provides the minimum number of hours required by the statute. Any existing PTO must provide for time off for the same reasons and requirements as set out in the HWA. Employers subject to a collective bargaining agreement (CBA) should review the CBA to determine if PTO may be use for the same reasons and requirements as set out in the HWA.
Other employer requirements include notifying employees of their rights under the HWA (written or electronic) as to how leave is accrued/calculated, how it may be used, protections against retaliation for exercising rights under the HWA and how to file a complaint to address violations. Employers must maintain records of hours worked and leave used for a period of four years.
Employers who have not yet implemented paid sick leave policies/procedures or revised existing PTO policies should do so immediately as failure to comply with the HWA may result in fines and possible civil action.
Members with questions about HWA should contact Western Growers.