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August 12, 2021

Planning Ahead: New Mexico’s Healthy Workplace Act

“The duty of planning the morrow’s work is today’s duty….” C.S. Lewis

Speaking of planning for “the morrow’s work,” New Mexico employers have some planning to do in preparation for the July 1, 2022 enactment of the state’s new Healthy Workplaces Act (HWA). Passed into law on April 8, 2021, the HWA provides employees up to 64 hours of paid sick leave each year.

The 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.

Joining several other states across the U.S, including Arizona, California, and Colorado[1], 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).

Permitted uses include taking time off for the employee’s own mental or physical illness, injury or health condition, medical diagnosis, care, treatment, or preventive medical care. Time may also be used for meeting the medical needs of a family member, meetings at the employee’s child’s school/care facility if related to child’s health or disability; and absences relating to domestic abuse, sexual assault or stalking suffered by the employee or a family member.

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. Employer’s 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 employee of their rights under the HWA, protecting employees from retaliation for exercising rights under the HWA, maintaining records of hours worked and leave used for a period of four years.  Failure to comply with the HWA may result in fines and possible civil action.

Stay ahead of the July 1, 2022 deadline by planning for “the morrow’s work” today. Employers seeking assistance with creating HWA complaint paid sick leave policies or in reviewing existing PTO policies should contact Western Growers.

[1] Colorado’s Healthy Families and Workplaces Act went into effect on January 1, 2021.