NEW MEXICO HEALTHY WORKPLACES ACT

The Healthy Workplaces Act of 2021 is a law requiring all private employers in New Mexico to allow employees to accrue and use a benefit called earned sick leave. The law takes effect on July 1, 2022. The Act lets employees earn and use paid sick leave. Employees may use this leave for various reasons listed in the Act, like the employee’s or their qualifying family member’s illness or injury, or to deal with certain legal and family issues. Employers who do not honor an employee’s rights to sick leave face potential civil liability. The Act authorizes the Labor Relations Division (LRD) of the New Mexico Department of Workforce Solutions (DWS) to investigate violations and enforce the Healthy Workplaces Act.

Employers with paid-time-off policies that are more generous than the minimum accrual and usage limits specified in Act are compliant with the Act if employees may use the leave for the same purposes and under the same terms and conditions specified in the Act.

The earned sick leave required by the Act is in addition to any paid time off provided by an employer pursuant to a collective bargaining agreement unless employees may use the paid time off for the same purposes and under the same terms and conditions specified in the Act.

Sick Leave (HWA) Webinar FAQ

We have transcribed your questions from NMRA’s Webinar and supplied answers either provided by DWS’s representatives at the webinar, or from DWS’s website.

Q – I have a current policy for a 2-hour notice for a call off that results in accountability in progressive discipline (unless it’s a valid emergency) does this get thrown completely out the window now? Or am I still able to hold true to my written policy?
A –  This is similar to the DWS’s FAQ:  “Under our current attendance policy, using sick leave is considered an unscheduled absence. Several of these absences result in a write-up. Would such a policy be considered retaliatory under the Act?”
Under the Act employers are prohibited from counting an employee’s valid use of sick leave 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 Act does not require employees to schedule use of sick leave in advance, except when the use of sick leave is foreseeable. In those cases, an employee is required to make a reasonable effort to provide oral or written notice of the need for such sick leave. And the employee must make a reasonable effort to schedule the use of sick leave in a manner that does not unduly disrupt the operations of the employer. When the use of sick leave is not foreseeable, the employee is only required to notify the employer orally or in writing “as soon as practicable.

Q – Are there sample policies that DWS can provide for the different scenarios (accumulation vs. front loading)?
A –  No

Q – If our company has an unlimited PTO for salaried managers, are we required to document hours taken for sick leave?
A – This is similar to the DWS’s FAQ “If our company already has a PTO policy that has a more generous accrual rate, are we compliant with the Act?”
“Not necessarily. Not only must you provide at least the same accrual rate as the Act, but you must also ensure the hours accrued can be used at a minimum for the same purposes and under the same terms and conditions as provided for by the Act. You must track leave usage and be able to provide documentation to establish compliance if an employee files a complaint against you. Also, the Division will require employers to honor their own policies and we will enforce those more generous provisions. Employers in violation could face assessments of improperly denied leave pay, statutory damages, and interest.”

Q – We have a PTO policy that accrues 6.00 hours a month the first year and 9.00 hours a month for 2 years or more. Can we keep this under our PTO policy, and do we have to track if they use the PTO or if it is sick leave? There is a 6-month waiting period so that would need to change. Also, will all employees including current ones be under this act?
A – Same as above.

Q – Which website do we download the poster from?
A – https://www.dws.state.nm.us/NMPaidSickLeave  or https://www.nmrestaurants.org/paid-sick-leave/ Click on the right side of the page “Paid Sick Leave Poster”

Q – Are there any samples how to update your policies?
A – This is similar to the DWS’s FAQ: “Will the Department of Workforce Solutions publish sample company polices that will comply with the act?” No. Every company is structured differently. If you need legal advice, please consult a qualified attorney.

Q – Isn’t “family member” very broadly defined in the law as more than just family as we know it?
A –  “Family member” means an employee’s spouse or domestic partner or a person related to an employee or an employee’s spouse or domestic partner as:
(1) a biological, adopted, or foster child, a stepchild or legal ward, or a child to whom the employee stands in loco parentis.
(2) a biological, foster, step or adoptive
parent or legal guardian, or a person who stood in loco
parentis when the employee was a minor child.
(3) a grandparent.
(4) a grandchild.
(5) a biological, foster, step or adopted sibling.
(6) a spouse or domestic partner of a family member; or
(7) an individual whose close association with the employee or the employee’s spouse or domestic partner is the equivalent of a family relationship.

Q – Restaurants use apps and technology to cover shifts. Is this in compliance with the law?
A –  This is similar to the DWS’s FAQ: “Many restaurants use apps where employees can call off on a shift and the app automatically opens that shift to other employees. Is that practice legal under the Act?”
While an employer may prescribe procedures for calling off work, an employee’s failure to provide advance notice in unforeseeable situations does not permit the employer to deny leave. Also, finding a replacement worker is never the employee’s responsibility. Failure to find a replacement may not be used as reason to deny leave.

Q – How do we calculate sick leave for tipped employees?
A – Tipped Employees: Employees who are ordinarily paid less than the full minimum wage due to a “tip credit” must receive the full state or local minimum wage (whichever is greater) when using earned sick leave.

Q – Can an employee require a Doctor’s note for time off?
A – “Documentation shall not be required for sick leave, except an employer may require reasonable documentation that sick leave has been used for a covered purpose if the employee uses two or more consecutive workdays of sick leave.” “If an employer requires an employee to provide documentation when the employee’s use of earned sick leave results in an absence of two or more consecutive workdays, the employee shall be allowed 14 days from the date they return to work to provide such documentation.”

Q – So accrual is NOT fractional? Calculated as 1 hour per pay period if they worked more than 30 less than 60?
A – “Earned sick leave may be used in the smaller of hourly increments or the smallest increment that the employer’s payroll system uses to account for absences or use of other time.”

Q – Please clarify the starting point of a new year. May it be the start of a new year based on hire date?
A – “Employers can choose how to measure when the year cycle of accrual, use, and carryover begins and ends. There are four options:
• Calendar Year (January 1 to December 31).
• Fixed 12-Month Period, like fiscal year or a year starting on the specific employee’s anniversary
date with the company.
• 12 Months Measured Forward starting when an employee first used any earned sick leave.
• 12 Months Measured Backward from the date an employee uses any earned sick leave”

Q – For seasonal employers, if the employee quits and has accrued time, does that need to be paid out to them?
A – 6 Cashing or Paying Out Unused Leave
The Act does not require unused sick leave to be cashed out or paid out to employees upon separation,
whether due to termination, resignation, retirement, or any other reason. However, cashing out accrued
but unused PTO may be required in some circumstances; accrued or earned leave such as PTO may be
payable pursuant to an employer’s policy, any applicable CBA, or as otherwise required by law.

Q – Can employee take PSL for any other reasons than those listed?
A – Permissible Reasons for Using Paid Sick Leave
Employers cannot require employees to use HWA leave, but if the employee chooses to use their earned
sick leave, they may do so for any of the following reasons:
• a mental or physical illness, injury, or health condition of the employee or the employee’s family
member.1
• medical diagnosis, care, or treatment of a mental or physical illness, injury, or health condition
of the employee or the employee’s family member.
• preventive medical care for the employee or the employee’s family member.
• meetings at the employee’s child’s school or place of care related to the child’s health or
disability.
• absences necessary due to domestic abuse, sexual assault, or stalking suffered by the employee
or a member of the employee’s family to:
* obtain medical or psychological treatment or other counseling * relocate
* prepare for or participate in legal proceedings
* obtain services or assist family members with the above activities

Q – Clarifying sick leave accrual…. If we don’t accrue fractions of sick hours….If employee works 50 hours in a 2-week pay period, they accrue 1 hour, but do we carry over the other 20 hours to the next pay period for accrual?
A – “If the number of hours an employee works fluctuates from week to week, the employer must use the average number of hours worked by the employee during the preceding two weeks. This average will
be the number of hours for which a sick employee must be paid for “one day” of absence. “ Also “Earned sick leave may be used in the smaller of hourly increments or the smallest increment that the employer’s payroll system uses to account for absences or use of other time.”

Q – Is there a form to use for the employee to complete if using this sick leave?
A – There is no form required for the employee to request the leave.  For the employer, there is a Written Notice Upon Hire.
Upon hire, an employer must give every employee written or electronic notice of the following:
→ The employee’s right to earned sick leave.
→ How earned sick leave is accrued and calculated.
→ The terms of use of earned sick leave as guaranteed by the Act.
→ Retaliation for exercising one’s rights to earned sick leave is prohibited.
→ The employee’s right to file a complaint with the LRD for alleged violations of the Act.
→ All means of enforcing violations of the Act.
This notice must be in English, Spanish, or any other language, if requested by the employee, that is
the first language spoken by at least ten percent of the employer’s workforce.

Q – During your talk we are told several times about the costs and consequences of breaking the law.
A – An employer’s willful violation of any requirements listed in this section could result in an assessment of damages of $250 per violation.

Q – How do you accrue sick hours for commission only employees?
A – “Commission employees who also have an hourly or salary rate should be paid according to that rate.
This must be at least the applicable minimum wage. Employees on commission only must receive at
least minimum wage.”