New Mexico Paid Sick Leave

No. Employers can never cap an employee’s PSL accrual. However, the New Mexico Legislature wrote the Act to permit employers to cap use at 64 hours per year. Therefore, employers who cap PSL use should be sure to notify their employees that sick leave balances may not reflect the number of hours they will be allowed to use in a given year.

No. The Division recommends employers make it clear to employees that one bank of PTO that can be used for any reason means that employees will not have paid sick leave available if they exhaust their PTO balance. However, remember that the PTO must be subject to the same usage, accrual, carryover and other requirements of the Act. 

It depends. Travel during the work day from job site to job site is generally compensable work time and PSL will accrue, but normal travel from home to work or work to home is not work time and PSL will not accrue. The “portal-to-portal” exclusion under the Fair Labor Standards Act (FLSA) does not apply in New Mexico, so if employees are required to meet at a central location to be transported to the job site, that travel time would be considered compensable time and PSL would accrue. 

Yes. Part-time, temporary, and seasonal employees must also accrue paid sick leave at a minimum of 1 hour per 30 hours worked. This is calculated on a rolling basis, so a part-time employee who works 20 hours each week will accrue 0.67 hours of paid sick per week. By the end of the third week, that employee will have a paid sick leave balance of 2 hours.

No. Employees only accrue a minimum of 1 hour paid sick leave for every 30 hours actually worked. However, an employee who is required to remain on the employer’s premises or so close thereto that he cannot use the time effectively for his own purposes is working while “on call.” This would be compensable time and therefore PSL would accrue. On the other hand, an employee who is not required to remain at the employer’s premises but is merely required to leave word at his home or with company officials where he may be reached is not working while on call. If the employee is fully able to use the time for his or her own purposes while on call, then PSL would not accrue.   

No. Every company is structured differently. If you need legal advice, please consult a qualified attorney.

Yes. The Labor Relations Division also recommends you provide notice of the Act and any employer policy changes to all employees affected by the changes.

Employers may frontload less than the full 64 hours only in the case of employees whose employment begins after January 1 of a given year, in which case employers may frontload a prorated portion of the 64 hours to use during the rest of the year.

While it is possible to have a single PTO policy and be compliant with the Act, doing so is not the right choice for every business. Employers who choose this route must ensure their PTO policy tracks the Healthy Workplaces Act requirements in every regard. For instance: it must provide the same or more generous accrual, carryover, and use benefits; employees must start accruing leave upon hire; employees must be allowed to use the PTO for all the same purposes permitted by the Act, including those related to family members; the policy must incorporate the Act’s rules on recordkeeping, notice, payment for leave used, etc.

It is against the law to retaliate against an employee for exercising rights under the Act. Employers have the right to discipline employees according to their own internal policies, but they should use caution when disciplining employees in connection with earned sick leave use to ensure that discipline is not being used in a retaliatory manner or to discourage employees from using earned sick leave in the future. If a complaint is filed, the Division will make a finding as to whether the discipline was administered in relation based on the facts discovered through our investigation.