Governor Lujan-Grisham’s office released information on a new set of restrictions effective 10/20/2020.  We have compiled FAQ’s based on inquiries NMRA received and our correspondence with the Governor’s office.  Click HERE to view the full release.

NM Safe Certification

– As a train the trainer program, the Owner, GM, or appropriate manager needs to take the course in order to certify the business. Servers and bussers should not apply and complete the training, if there is not an appropriate manager registered under the same business. To make sure everyone can get  through the system, please have only the Owner, GM, or appropriate manager register and complete the training at this time. After the deadline, access can be giving access to additional employees, if desired.

– If the owner or GM (or other appropriate manager) has completed all the modules (All-Employer, Retail, and Restaurant), but has not received a Certificate, please have them email verifynmsafecertified@gmail.com. Please provide your name, job title, business, and email you registered under. (Reminder Certificates are for the business not individuals.)

– Online directory submissions. If your business has received a certificate, the link to add your business to the online directory is in that same email. Online directory listings are self-submitted.

-If you previously registered, but have not received login credentials, please check your spam folder for login credentials. If you do not see it in your spam, please email us at nmsafecertified@gmail.com, stating you have not received login credentials. Please include your name, job title, business, and email you registered under. Your account will be reset and you will be sent a new password.

Contact Tracing

Press Release Excerpt: “Restaurants wishing to continue limited indoor dining must require customers who dine on-site to list their name and contact information in a logbook, and retain the information for no less than three weeks, to assist state regulators in contact-tracing efforts. Previously, this contribution to contact-tracing efforts was only recommended as part of the state’s COVID-Safe Practices.”

Q: What app does the NMRA recommend using for contact tracing and screening?

        A: NMRA recommends using the Dr. Owl that was featured in our 10/27 COVID Call.

Q: What is included in “contact information”? 

A: Date/time, name, email and phone. Retain log for 3 weeks then can discard.

Q: Does the log have to have a certain format?

A: No

Q: What if the customer refuses?  Are we to refuse service?

A: Best practice is to refuse service.

Q: If they customer provides fake information or a fake name, are we to refuse service?

A: Best practice is to refuse service if it is known to the business that a customer provides a fake identification.

Q: Does the information have to be taken upon arrival, or can it be done as part of the check?

A: Either time is acceptable.

Q: Are we required to match ID to the logbook?

A: No, but this would be a best practice.

Q: Do outdoor diners also need to be tracked?

A: Yes, if the restaurant has elected to offer indoor dining, the contact tracing requirement extends to all customers.

Q: Does just one person in the party have to be tracked, or is it every customer?

A: Each customer,  

Certification 

Press Release Excerpt:  “Food and drink establishments that complete the New Mexico Safe Certification training program, which educates workers about the state’s required and recommended COVID-Safe Practices, may continue to offer limited indoor dining at a maximum of 25 percent occupancy as of Friday, Oct. 30. Food and drink establishments that are not New Mexico Safe Certified as of Friday, Oct. 30, may continue to provide outdoor dine-in service at 75 percent of maximum occupancy with tables at least six feet apart among other required COVID-Safe Practices but may not provide indoor dine-in service. ” 

Q: Does everyone eventually have to be certified?

     A: The safe certified program is design as a “train the trainers” program. Each location of a business must be certified. Managers are required to then train employees (including new employees, as applicable, upon hiring) and retrain employees when CSPs are updated.

Q: NM Safe Certified’s site says “appropriate managers” need to be trained.  How many managers per location need to be trained?

     A: The GM or one designee per location needs to submit the application for the location, and then the NM Certified Team will work with them to train the remaining staff.

Curfew

Press Release Excerpt: “All retail establishments must close by 10 p.m. each night, in alignment with the state’s requirement that food and drink establishments serving alcohol must close by 10 p.m. Retail establishments are defined in the public health order as businesses selling goods or services directly to a customer and include grocery stores and “big box” stores.”

Q: If we serve alcohol, and have to close at 10pm, when may we reopen?

       A: You must remain closed until at least 4 am the following day.

Q: Do restaurants NOT serving alcohol have to close at 10 pm?  Do they count as retail?

A: Restaurants that do not serve alcohol may remain open past 10 pm.

Q: Does takeout have to end at 10pm?

A: If your indoor dining closes at 10 pm, takeout must cease as well. Delivery may continue as long as no customers are on the premises.

Q: Can delivery entities like pizza or third party like Grubhub deliver after 10pm?

       A: Yes, see above.

Q: Do restaurants that serve alcohol just have to stop serving alcohol at 10pm?

      A: No, essentially any restaurant that serves alcohol any time of day must close.

Q: Do all patrons have to be out of the door and the doors locked by 10 pm?

      A: Yes, no customers on premises after 10pm.

Q: Do restaurants with drive thrus – like McDonald’s – have to close at 10pm?

A: No, because they do not serve alcohol. Note: if fast food establishment elects to continue indoor service, they are subject to all of the new requirements as well. 

Spot Testing 

Press Release Excerpt: “Restaurants wishing to continue limited indoor dining must consent, as part of the certification program, to spot testing of employees by the state Department of Health. The Department of Health will prioritize spot-testing for establishments in high-risk counties where the spread of the virus is greatest.”

Q: What do I have to do?

      A: Screen all employees before they enter the workplace and send employees home are are experiencing COVID Symptoms. 

Q: Who is conducting the spot testing?

A: The Department of Health, possibly with the assistance of the National Guard, at no cost to the employer. This is essentially what already happens with rapid responses.

Still Unanswered:

Q:  What if employees refuse to be spot tested?

Q: What constitutes a “testing failure” and what actions are taken?

Q: My lawyer says employee spot testing may be a civil rights violation.  What should I do? (Note:  It is only for symptomatic employees who should not be on the premises in the first place per the CSPs for All Employers)

Rapid Response Closure  

Press Release Excerpt: “Businesses that incur four rapid responses – which occur when an employer reports, as required, an incidence of COVID-19 in the workplace to the state Environment Department, which oversees state occupational health and safety efforts – over a two-week period will be required to close for two weeks.”  

Q: I thought we had to close for 2 weeks anyway if we had an employee who tested positive so that we could get everything cleaned and get all staff tested and get the results back before reopening. Why are we now being told that you only have to close for 2 weeks if you have 4+ separate instances of rapid response?

     A: Rapid responses typically take 5 days or less, and many are only a few days with full cooperation from the business and employees.

Previous FAQ’s

We know reopening after a pandemic is not easy, so we have concentrated our efforts on making sure you have the answers you need to the questions that matter. We have done our best to source answers directly from documents provided by the state and/or by directly asking government officials. In some instances, we will have no further clarification on a subject than is provided in the documents we are referencing, but we will attempt to gather clarification as we are able to. Please let us know if you have questions that are not answered here and we will work to address them.

Q: What is the guidance regarding how to tipped employees for Emergency Paid Sick Leave?

A: Under the federal FFCRA, COVID emergency leave must be paid at the employee’s average regular rate of pay, which includes tips and commissions.

Q: Are we allowed to have buffet/omlette stations as long as the it is operated by a server and the customers do not serve themselves?

A: As long as the server is properly attired (face covering etc…) and social distanced, and the customers are properly distanced, then Kenney, and the OSHA director, have stated that is no different than someone in the kitchen preparing a salad, stir fry or other dish.

Q: Where do employers find guidance if an employee tests positive?

A: Because the situations may be different in each type of establishment there may be some case by case procedures that must be done. This is why the first step is to call the public health office.

Q: Does the employer pay for the time off if they have to send an employee home to get testing if they have one of the symptons described at the start of the presentation?

A: (McCamley answered) – yes.  They should be paid and you would get a tax credit through the family’s first coronavirus act.

Q: What if an at risk employee refuses to return work after exhausting the 2 weeks of emergency leave?

A: (McCamley) – the employee would need to make a case for Good Cause to NMDWS or they would not receive unemployment.

Q: A restaurant worker refuses to wear a mask and claims they have a doctor’s note.  Can they work that way or do I need to send them home?

A: (McCamley) – this is a american’s with disabilities act scenario.  Try and find a “reasonable accommodation.”  Can they do something else?  Can they work in a part of the store where they don’t deal with customers directly?  If not, it becomes an ADA issue.

Q: Can we require employees supply a copy of their covid test results prior to returning to work?

A: (McCamley) – I do not have an answer.  Dan Schiegel with the Governor’s Office believes there is a HIPPA issue unless it is a voluntary disclosure.  They will be getting in touch with the Dept. of Health to confirm and get back.

Q: What is the date of the next phase of letting employees go back to work in the office?

A: (Schiegel, Gov. Office) – office environments are currently at 25% capacity as of June 1st.  They would want 3 more weeks of data before considering phase 2.  June 21st they will be reviewing that data and will be making a decision then.  Which would put additional openings around end of June or early July.

Q: Will employers be required to tip wage workers at a standard hourly wage while they still report tips received?

A: (McCamley) – my understanding based on the minimum wage law now is that if your worker is working they are required to make from you the employer the minimum wage.  So if they are working for you, and they are there for work, and they are not making tips because you do not have customers that are tipping them enough to meet the hourly minimum wage, then yes.  You do need to pay them minimum wage even as a tipped employee.

Q: When will festivals/fairs/amusement parks be allowed to reopen? –

A: (McCamley) the virus will be dictating when large gatherings like that can happen again.  (Schiegel, Gov. Office) – I believe they are looking at this question extremely hard and we will hopefully be coming out with some guidance for larger events over the next few weeks.  I do think that any mass gatherings of over say 100 people will not be feasible for the foreseeable future.

Q: There are employees stating that wearing a mask is against their constitutional rights.  How does an employer deal with this?  Also, there are employers who are not requiring patrons to wear mask.  Can they legally stop people not wearing masks from coming into their stores?

A: (McCamley) – if customers are allowed to come into your business without masks, the investigators from an unemployment perspective, who are going to be determining if a work place is following covid safe practices if an employee asks to go back on unemployment instead of working, will take into account whether that is proof of am employee having “good cause” and proof of the employee not being safe at work.  (Schiegel) – it goes to the ADA for customers as well as far as requiring a customer to wear a mask.  We have also not made it a requirement for customers to wear masks because we don’t want to put you a business owner in a space of having to be the enforcer.  It is a case by case basis depending on the comfort level of the business owner, but remember there are some ramifications for it impacting your employees if you do not require customers to wear masks.  Regarding the constitution – I have not heard that one come up.  I have only heard it come up with regards to the medical.  We would have to do some more research for that.

Q: There is an employer that is a private small business, and can they refuse service to a customer or is it an ADA violation if they refuse service to a customer if the customer claims a disability during the pandemic  and so they cannot wear a mask?

A: (Russell with SBDC) – what we recommend is you should have an attorney on your team so you’re not making these types of assessments in a vacuum.  There is a legal accept and there is a reality aspect.  You could be doing everything right and still get sued.  So we encourage you to ask an attorney about your specific situation.

Q: With music events cancelled, can a restaurant have a band play, and if so do they need to follow the rules for churches?

A: (Schiegel, Gov. office) – this has not come up in the PHO yet, but it has come up since reopening restaurants.  From a public health guidance perspective, we would recommend no wind instruments or singing of any kind, like for churches not doing choir.  As far as a legal one, no guidance has come out yet.

Proactive Surveillance Testing FAQs

Q: Do my employees need health insurance to get tested? What if I have employees who don’t have health insurance?

A: All testing is free of charge to the individual and anyone can get tested, whether they are insured or not. If you have insurance, please bring your insurance card with you when you get tested.

Q: What if one of my employees tests positive for COVID-19?

A: The New Mexico Environment Department (NMED) or NMDOH will contact the positive employee and the employer by phone and send you a letter stating that one or more of your employees tested positive for COVID-19. The NMED will require you to initiate immediate actions to prevent further exposure. These activities include ceasing operations in full or in part per NMED/NMDOH direction, testing of all employees, re-testing of all employees in 7-10 calendar days, disinfecting the worksite, and implementing an employee safety plan. The NMED is experienced in working with employers to minimize downtime of your operations.

Q: Am I required by law to have my employees tested? 

A: New Mexico law states that every employer must provide a place of employment that is free from recognized hazards that are likely to cause death or physical harm to their employees. The NMED administers these laws and considers proactive testing of employees a necessary and critical means of ensuring a safe workplace.

Q: What if an employee refuses to be tested?

A: Employees have a responsibility to comply with their employer’s health and safety standards and policies.

Q: Does the surveillance program send testing personnel to my site?

A: Testing is primarily completed at NMDOH’s Public Health Offices (PHO), conveniently located throughout the state. To find the testing facility closest to you, go to https://cv.nmhealth.org/public-health-screening-and-testing. In some cases, if there are a large number of employees who need to be tested, arrangements may be made for onsite testing. NMED is encouraging all New Mexico employers to utilize the PHO testing sites.

Q: If an employee tests positive how long will they have to quarantine?

A: The New Mexico Department of Health recommends that employees who test positive self-quarantine for 7-10 days and then be retested. Employees should not return to work until they have obtained a follow-up negative test result.

Q: Do we have to test all employees on one day?

A: No. Contact the NMED at NMOSHA.COVIDTesting@state.nm.us and we will work with you on available testing times and locations.

Q: I received a call from someone claiming to be with New Mexico OSHA regarding surveillance testing. Is this legitimate?

A: NMED, in conjunction with NMDOH, is conducting COVID-19 testing around the state. Employers may be contacted by either Department with a request that employees at your establishment be tested for the virus that causes COVID-19. Testing fraud has been reported in some areas of the U.S. If you wish to verify the legitimacy of a contact from our Testing Surveillance program, email NMOSHA.COVIDTesting@state.nm.us or call 800-219-6157. It is also important to note that COVID-19 testing in the state of New Mexico is 100% free of charge and none of our testing programs will require that you disclose your Social Security number.

Q: Does the employer have to pay for the employee’s time during testing?

A: Yes. New Mexico and federal law mandates that employees shall be authorized official time for activities related to occupational health and safety.

Q: How long will the employees have to wait in line for testing?

A: We cannot guarantee that there will be no wait, but the NMED and the NMDOH are working together to coordinate test scheduling so that wait times are minimized to the extent possible.