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On April 8, 2021, New Mexico Governor Lujan Grisham signed into law the Healthy Workplaces Act (HB 20) which effective July 1, 2022, requires that most employers provide up to 64 hours of paid sick leave per year to their New Mexico employees.

"This is, point blank, a humane policy for workers," said Governor Grisham. "No one should ever be compelled to come to work when they are sick. And no worker should ever feel they must choose between their health and their livelihood." (Governor Grisham press release, April 8, 2021.)

Covered employers and employees

The paid leave requirements apply to all employers that employ one or more New Mexico employees at any one time. The following are exempt from the requirement:

• Federal governmental employers
• Any state or political subdivision of New Mexico
• An employer subject to the federal Railway Labor Act (or employees as defined in either the federal Railroad Unemployment Insurance Act or the Federal Employers Liability Act)

A covered employee includes individuals employed within New Mexico on a full-time, part-time, seasonal or temporary basis.

Accrual of paid sick leave

It is required that employees accrue a minimum of one hour of earned sick leave for every 30 hours worked; however, employers may use a higher accrual rate.

Employers may elect to grant employees the full 64 hours of earned sick leave for the upcoming year on January 1 of each year, or for employees whose employment begins after January 1 of a given year, a pro-rata portion of the 64 hours for use in the remainder of that year.

All covered employees must accrue earned sick leave as follows.

• Earned sick leave begins to accrue upon the latter of commencement of the employee's employment, or the effective date of the Healthy Workplaces Act, and such leave may be used beginning on the latter of those dates.
• Employees who are exempt from the overtime requirements of the federal Fair Labor Standards Act are assumed to work 40 hours in each workweek for the purposes of the earned sick leave accrual unless their normal workweek is less than 40 hours, in which case earned sick leave accrues based on their normal workweek.
• Accrued unused earned sick leave must carry over from year to year, but an employer is not required to permit an employee to use more than 64 hours in a 12-month period.
• Employers are not required to pay employees for earned sick leave not used upon their termination, resignation, retirement or other separation from employment.
• An employer may not require an employee to use other paid leave before the employee uses sick leave pursuant to this law.

An employer may choose any one of the following methods for determining the 12-month period in which earned sick leave may be used:

• The calendar year
• Any fixed 12-month leave year, such as a fiscal year, a year required by other law, or a year starting on an employee's anniversary date

• The 12-month period measured forward from the date an employee's first uses of earned sick
• leave
• A rolling 12-month period measured backward from the date an employee uses any earned
• sick leave

Circumstances that qualify for paid leave

An employee may use earned sick leave:

• For the employee's own mental or physical illness, injury or health condition, medical diagnosis, care or treatment of a mental or physical illness, injury or health condition or preventive medical care
• To care for a family member's mental or physical illness, injury or health condition, medical diagnosis, care or treatment of a mental or physical illness, injury or health condition or preventive medical care
• To attend meetings at the employee's child's school or place of care related to the child's health or disability
• For absence necessary due to domestic abuse, sexual assault or stalking suffered by the employee or a family member of the employee, provided that the leave is to obtain medical or psychological treatment or other counseling, to relocate, or to prepare for or participate in legal proceedings

Employee notice concerning need for paid leave

Employers are required to provide earned sick leave upon the oral or written request of an employee or an individual acting on the employee's behalf. When possible, the request should include the expected duration of the sick leave absence.

When the use of earned sick leave is foreseeable, the employee is required to make a reasonable effort to provide oral or written notice of the need for sick leave to the employer in advance of the use of the earned sick leave and make a reasonable effort to schedule the use of earned sick leave in a manner that does not unduly disrupt the employer's operations.

When the need to use earned sick leave is not foreseeable, the employee must notify the employer orally or in writing as soon as practicable.

Employer notice requirements

Upon commencement of employment, employers are required to give employees written or electronic notice in English, Spanish or any language that is the first language spoken by at least 10% of the employer's workforce and include the following:

• The employee's right to earned sick leave
• The manner that sick leave is accrued and calculated
• The terms of the use of earned sick leave as guaranteed by the law
• A statement that retaliation against employees for the use of sick leave is prohibited
• A statement explaining the employee's right to file a complaint with the New Mexico Department of Workforce Solutions (DWS) if the employer denies earned sick leave as required pursuant to the law or if the employee is retaliated against
• A listing of all means of enforcement of the law

In addition to providing the notice to employees, employers must also display a poster that contains the information above.

More information, including the workplace poster, once available, will be posted on the DWS website.

Ernst & Young Insights

The law specifies that if an employer has a paid leave policy with accrual requirements that meet or exceed those under the New Mexico Healthy Workplaces Act, and those accrued leave hours are available under the same minimum terms and conditions, the employer's policy is deemed to meet the requirements of the New Mexico Healthy Workplaces Act. (Exceptions apply to employees covered under a union agreement.)

Note also that the paid leave requirements under the New Mexico Healthy Workplaces Act are more generous than those required by employers of Bernalillo County. Accordingly, effective July 1, 2022, Bernalillo County employers must instead comply with the requirements of the New Mexico Healthy Workplaces Act.

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