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Does paid sick leave get paid out upon separation?

The Act does not require earned sick leave to be paid out upon an employee’s separation, however, an employer may have a policy that allows it. Employees who do receive payout of some or all their unused leave upon separation will be deemed to have used that leave. Those employees will not be eligible to have this leave restored if they return to the company within 12 months.

What happens if an employee does not have enough accrued paid sick leave to cover their entire absence from work?

The employer is only responsible to pay for paid sick leave accrued under the Healthy Workplaces Act. If an employee takes more sick leave than the paid sick leave hours accrued, the employer is not required to pay for these additional hours, unless otherwise provided for in the employer’s policies. Additionally, an employee may be disciplined according to an employer’s policy for any hours they are absent from work for which they do not have accrued paid sick leave to use or some other type of leave that could appropriately cover the absence. Employees should contact their employer’s HR Department or consult the employer’s policies for further information.

I telework from home in New Mexico, but the company is located in a different state. Do I still accrue sick leave?

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

  • 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;

  • Workers who 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 complaint. An employer must have “minimum contacts” with our state as defined by law for the Division to have jurisdiction;

  • Workers who 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 the employer lacking minimum contacts with our state

  • Workers who 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;

  • Workers who 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.

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