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Summary of differences between federal and state regulations
New Mexico employers need to be aware of other provisions such as those regarding paid sick leave, and leave for domestic abuse victims, emergency responders, and caregiver leave, as well as pregnancy accommodations.
Healthy Workplaces Act (paid sick leave)
Effective July 1, 2022, New Mexico employers need to provide paid sick leave to employees. While the law has been dubbed a paid sick leave, it also entitles employees to time off to care for family members.
Covered employers
All private employers are covered by the law.
Employee eligibility
No employee eligibility criteria is involved. All employees may accrue and take the leave.
Leave entitlement
Upon starting work, employees accrue one hour of earned sick leave for every 30 hours worked. Employees exempt under the FLSA are assumed to work 40 hours in each work week unless their normal work week is less than 40 hours, in which case earned sick leave accrues based on their normal workweek.
Employers may front-load the full 64 hours of earned sick leave for the upcoming year on January 1 of each year.
For employees whose employment begins after January 1 of a given year, employers may use a pro rata portion of the 64 hours for use in the remainder of that year.
Employees may be limited to using 64 hours of earned sick leave per 12-month period.
Employers may choose from the same methods for calculating the 12-month leave year period as under the federal FMLA.
Accrued unused earned sick leave must carry over from year to year, but employers may limit the use of leave to 64 hours in a 12-month period.
Employers need not pay out any unused paid sick leave upon separation.
Employees may not be required to find a replacement worker to cover the leave.
Employers may not require employees to use other paid leave before using sick leave.
Reasons for leave
Employees may take the paid sick leave for the following reasons:
- For the employee’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 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.
- For meetings at the employee’s child’s school or place of care related to the child’s health or disability; or
- 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 for the employee to:
- Obtain medical or psychological treatment or other counseling;
- Relocate;
- Prepare for or participate in legal proceedings; or
- Obtain services or assist a family member with activities related treatment or counseling, relocation, or preparing for or participating in legal proceedings.
Family members include the following:
- A biological, adopted or foster child, a step or legal ward, or a child to whom the employee stands in loco parentis;
- 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;
- A grandparent;
- A grandchild;
- A biological, foster, step or adopted sibling;
- A spouse or domestic partner of a family member; or
- An individual whose close association with the employee or the employee’s spouse or domestic partner is the equivalent of a family relationship.
Only if employees use two or more consecutive workdays of sick leave may employers require reasonable documentation that sick leave has been used for a qualifying reason. Documentation signed by a health care professional indicating the amount of earned sick leave taken is necessary is considered reasonable.
In cases of domestic abuse, sexual assault or stalking, employees may choose to provide one of the following types of documentation, which must be considered as reasonable:
- A police report,
- A court-issued document
- A signed statement from a victim services organization, clergy member, attorney, advocate, the employee, a family member of the employee or other person affirming that the sick leave was taken for a qualifying reason.
Employers may not delay leave while waiting for documentation.
Benefits/pay
Employees are compensated at the same hourly rate and with the same benefits, including health care benefits, as they normally earn during hours worked.
Restoration
Employers may not take a negative employment action, including termination, against employees who request or take the paid leave.
Notice
Earned sick leave must be provided upon the oral or written request of an employee or an individual acting on the employee’s behalf. When possible, the request must include the expected duration of the leave.
When the need for leave is foreseeable, employees must make a reasonable effort to provide oral or written notice of the need for such leave advance. Employees must also make a reasonable effort to schedule the leave in a manner that does not unduly disrupt the employer’s operations.
When the leave is not foreseeable, employees must provide notice orally or in writing as soon as practicable.
Employers must provide notice of the law to employees upon hire. They must also post the notice at the workplace.
Employers must have kept hours worked and sick leave taken records for at least four years.
Victims
The law applies to all employers.
Employee eligibility
There are no employee eligibility criteria.
Leave entitlement
Employees may take leave for up to 14 days per year taken for up to eight hours each day for the following reasons in relation to the domestic abuse of an employee or an employee's family member:
- To obtain an order of protection or other judicial relief from domestic abuse,
- To meet with law enforcement officials,
- To consult with attorneys or victim advocates, or
- To attend court proceedings.
Family members are minor children of the employee or a person for whom the employee is a legal guardian.
This leave is in addition to that which is provided by the federal FMLA.
Maintenance of health benefits
The law contains no provisions for maintenance of health benefits.
Pay while on leave
Employees may use accrued paid time off consistent with employer policies.
Notice
Employees are to give notice of the need for leave within 24 hours of the beginning of leave.
Employers may require verification of the need for leave. Such verification may be provided through the following forms:
- Police report,
- Copy of an order of protection or other court evidence, or
- Written statement of an attorney representing the employee, a victim's advocate, law enforcement official, or a prosecuting attorney.
Employee information regarding the domestic abuse must be kept confidential.
Emergency responders
Employees who voluntarily respond to an emergency or disaster in support of a fire department, emergency medical service, search and rescue team, or a law enforcement agency have job protections. Such employees are entitled to be absent for up to 10 business days per calendar year from work to respond.
Employees are to make reasonable efforts to notify the employer of the response and continue to make such notification over the course of the absence.
Employers may request that an employee provide written verification from the emergency agency regarding the dates and time the employee served as a responder.
Employers may charge the absence against the employee’s regular pay time.
Caregiver leave
Under the New Mexico Caregiver Leave Act, employers that provide employees with sick leave for the employee’s own condition must allow the employees to use accrued sick leave to care for a family member on the same terms and procedures imposed for use of the sick leave. Employers are not, however, mandated to provide sick leave, but if they do, they must allow employees to use it for family members.
Family members include spouse, domestic partner, parent, grandparent, great-grandparent, child, foster child, adopted child, grandchild, great-grandchild, brother, sister, niece, nephew, aunt, or uncle.
The sick leave does not run concurrently with leave under the federal FMLA.
Pregnancy accommodations
Employers with four or more employees must provide a reasonable accommodation to employees or job applicants due to pregnancy, childbirth, or conditions related to pregnancy or childbirth.
Employers may not mandate that employees take leave for to pregnancy, childbirth, or related conditions if another reasonable accommodation can be provided unless the employee voluntarily requests to be placed on leave or the employee is placed on leave pursuant to federal law.
Reasonable accommodations can include changes to the work environment, work schedule, work rules, or job responsibilities for as long as necessary. The changes are to be reached through good faith efforts to explore less restrictive or less expensive alternatives to enable an employee to perform the job’s essential functions. Employers need not provide an accommodation that imposes an undue hardship on the business.
State Contacts
New Mexico Department of Workforce Solutions
http://www.dws.state.nm.us/
New Mexico Human Rights Commission
State statutes/regulations
Healthy Workplaces Act
NMSA, Chapter 50 Employment Law, Article 17
Healthy Workplaces Regulations
https://www.srca.nm.gov/parts/title11/11.001.0006.html
Promoting Financial Independence for Victims of Domestic Abuse Act
NMSA, Chapter 50 Employment Law, Article 4A
Volunteer Emergency Responder Job Protection Act
NMSA, Chapter 12 Miscellaneous Public Affairs Matters, Article 10C
Caregiver Leave Act
NMSA, Chapter 50 Employment Law, Article 16
Pregnancy Accommodations
NMSA, Chapter 28 Human Rights, Section 7, 28-1-7
Federal
Contacts
US Dept. of Labor, Wage & Hour Division
Regulations
29 CFR Part 825, “The Family and Medical Leave Act of 1993”