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: 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.