New Mexico Paid Sick Leave

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.

If an employee regularly works more than 40 hours in a week and uses earned sick leave, the employer must pay the employee according to those regularly scheduled weekly hours, even if greater than 40.

Yes. Whatever paid sick leave balance the employee had upon departure must be reinstated upon rehire within 12 months, even if that’s more than 64. The only exception is if the employee chose to be paid out all unused hours to when they left the company. In that case, the hours were deemed “used” when cashed out upon separation and do not need to be reinstated.

Quarterly year-to-date summaries must show hours worked, PTO accrued, and PTO used. If an employee files a complaint, the Department of Workforce Solutions, Labor Relations Division will request and review up to the past four years of employer reports and the PTO policy to verify compliance with the Act. Both parties may also submit additional evidence they feel is relevant to the complaint. The Division will make a determination based on all evidence submitted.

It is impossible to give a precise answer to this question because of the numerous scenarios that may come up. In general, however, telecommuters and remote workers who:

• Perform services within the geographical boundaries of New Mexico, other than on tribal land, and whose employers are incorporated, registered, based, physically located, or are conducting their stated business in New Mexico (a “New Mexico employer”) are most likely covered;
• Perform services remotely while within the geographical boundaries of New Mexico, other than on tribal land, and whose employers are based or incorporated out of state (an “out-of-state employer”) but do provide significant services in New Mexico or conduct significant business activities in the state, are probably covered. The Division will determine coverage on a case-by-case basis after reviewing the facts presented in a PSL complaint. An employer must have “minimum contacts” with our state as defined by law for the Division to have jurisdiction;
• Perform services remotely while within the geographical boundaries of New Mexico, other than on tribal land, but whose employers are based out of state and do not provide significant services in New Mexico or conduct significant business activities in the state, are most likely not covered due to a lack of minimum contacts with our state by the employer;
• Perform services remotely but do so while physically outside of the geographical boundaries of New Mexico are not covered regardless of whether their employers are based in New Mexico or are out-of-state employers with minimum contacts. The work upon which the accrual, usage, and payment of paid sick leave is based must have been performed in New Mexico for the Division to have jurisdiction;

Remotely perform some services in New Mexico and other services not in New Mexico, are probably partially covered by the Act for the services performed in New Mexico, but only if the employer is also a New Mexico employer or an out-of-state employer with minimum contacts in New Mexico.    

It depends on how many hours of paid sick leave the employee ends up accruing throughout the year. If they accrue the full 64 hours but then works additional hours (such as overtime), the employer will have to add sick leave hours to that employee’s leave balance to be in compliance.

The Act does not require earned sick leave to be paid out upon an employee’s separation. However, unused PTO that has been accrued or earned may be payable upon separation according to an employer’s particular PTO policy, any applicable CBA, or as otherwise required by law. Employees who do receive a payout of all unused leave upon separation will be deemed to have used that leave. Those employees will not be eligible to have leave restored if they return to the company within 12 months.  

When the need to use earned sick leave is foreseeable, the employee should make a reasonable effort to provide advance oral or written notice to the employer. (“Foreseeable” means an employee is aware of the need to use earned sick leave seven or more days before such use.) These employees should also make a reasonable effort to schedule leave in a way that will not disrupt the employer’s operations. But if the need to use earned sick leave is not foreseeable, the employee is only required to notify the employer as soon as practicable.

If an employer denies an employee’s request to use earned sick leave and the employee files a complaint with the Division, the employer will have an opportunity to provide the Division with evidence that the employee was not entitled to use the leave. If the Division finds that the employee was wrongfully denied, the employer could be liable for improperly denied leave pay, damages, and interest. If the Division determines that the employee was not entitled to use earned sick leave, the employer will not be liable.