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About New Mexico Paid Sick Leave (Healthy Workplaces Act)

 

The Healthy Workplaces Act of 2021 is a law requiring all private employers in New Mexico to allow employees to accrue and use a benefit called earned sick leave. The law takes effect on July 1, 2022. The Act lets employees earn and use paid sick leave. Employees may use this leave for various reasons listed in the Act, like the employee’s or their qualifying family member's illness or injury, or to deal with certain legal and family issues. Employers who do not honor an employee’s rights to sick leave face potential civil liability. The Act authorizes the Labor Relations Division (LRD) of the New Mexico Department of Workforce Solutions (DWS) to investigate violations and enforce the Healthy Workplaces Act.

Employers with paid-time-off policies that are more generous than the minimum accrual and usage limits specified in Act are compliant with the Act if employees may use the leave for the same purposes and under the same terms and conditions specified in the Act.

The earned sick leave required by the Act is in addition to any paid time off provided by an employer pursuant to a collective bargaining agreement unless employees may use the paid time off for the same purposes and under the same terms and conditions specified in the Act.

Healthy Workplaces Act Final Rules 

Healthy Workplaces State Statute, NMSA Chapter 50, Article 17 - PDF

 

 

Frequently Asked Paid Sick Leave Questions

FAQs all-in-one - PDF

Businesses should keep track of hours worked for salaried non-exempt employees to be able to calculate how much sick leave each employee should be accruing. For salaried exempt employees, you can assume they work 40 hours per week for accrual purposes unless you know that they regularly and customarily work fewer hours per week, in which case their leave accrual should be based on their normal hours worked per week. The recordkeeping and notice requirements of the HWA applies equally to all classifications of employees.

To determine what pay salaried exempt or salaried non-exempt employees whose hours fluctuate from week to week should receive for sick leave hours used, convert their annual salary into a weekly salary, and divide that amount by a standard 40 hours. That will give you the employee’s salary broken down into an hourly amount. Employers must ensure that the employee gets paid at least that amount per hour of sick leave used. This amount of pay does not need to be in addition to or on top of their regular salary. Furthermore, 40 hours is the assumption, but if you know the exempt employee works fewer than 40 hours per week, you must divide their weekly salary by their standard hours instead of 40. On the other hand, if they typically work more than 40 hours, still just divide by 40.

For salaried non-exempt employees or employees whose weekly hours don’t fluctuate, you do the same math but instead of using a standard 40 hours, you use the number of hours that employee works in a regular work week.

State law, including the HWA, supersedes federal law where the protection afforded an employee under the state law offers greater protection to the employee than the federal law. Similarly, to the extent that a municipal or county ordinance provides for greater employee protections than state law, an employer must comply with the provisions most protective to employees. 

If your unlimited leave may be used for all the same purposes and under the same (or more generous) terms and conditions as what the Act requires, including those related to notice and documentation, you will be compliant. However, you will have to keep track of any time used so that if a complaint is filed against you, the Division will be able to determine whether that employee accrued and was allowed to use the mandatory minimum amounts of leave.

Whichever way employees accrue sick leave—whether through frontloading or continuous accrual—at least 64 hours of unused leave must be carried over each year. Yes, that could result in an employee having a balance of 128 hours, even if the employer’s policy limits annual use to 64 hours. If an employee used some of their paid sick leave during the year so they have fewer than 64 hours remaining in their balance, then the employer would have to carry over all unused hours.

An employer may not require employees with unused leave balances to cash them out but may allow it if it is permissible under their leave policy and the employee elects to do so. Employees with unused accrued leave at the end of the year should have that leave carried over to the next year but cashing out a paid sick leave balance instead is permissible at the employee’s option.

Here are some examples:

  • Individuals performing services in peoples’ home for compensation are covered by the Act unless they are sole proprietors.
  • Independent contractors and subcontractors are not employees under the Act. But employers should be cautious to not misclassify these workers as contractors to avoid having to comply with the Act; the Act includes penalties for doing so. 
  • Corporate officers and company owners might be considered employees under the Act if they perform services for renumeration as set forth in their governing documents such as by-laws, operating agreements, corporate resolutions, etc.
  • Sole proprietors are not considered employees but any other individual performing services for the sole proprietor for remuneration would be. For example, a sole proprietor attorney would not be an employee, but the attorney’s paid legal assistant would be.
  • Employees of charitable, religious, or non-profit organizations are covered by the Act, as distinguished from people volunteering with such organizations.

(Example 1: frontload for salaried employees and use accrual of 1 hour per 30 hours worked for hourly or part-time employees. Example 2: frontload for current employees on January 1st each year and use accrual of 1 hour per 30 hours worked for new employees hired during that year.)

Yes, but the business should ensure they are clear about which employees fall within each category, and keep records of hours worked, leave accrued, and leave used for employees in all categories. All employees must also accrue PSL at a rate of at least 1 hour for every 30 hours work regardless of which category they are in.

Yes. Even though employers are not required to permit employees to use more than 64 hours of leave in a year, it is illegal to cap the number of hours an employee can accrue. 64 hours of paid sick leave equates to 1,920 hours worked, so once an employee works more than this in a one-year period, that employee must accrue an additional 1 hour of paid sick leave per every 30 hours worked.

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Contact Labor Relations Division

Albuquerque Map
Albuquerque
401 Broadway Blvd NE
Albuquerque, NM 87102
Phone: 505-841-4400
Fax: 505-841-4424
Las Cruces Map
Las Cruces
226 South Alameda Blvd
Las Cruces NM 88005
Phone: 575-524-6195
Fax: 575-524-6194

Resources, Guides, and Training

 
Paid Sick Leave Poster
 
Resources
 
Healthy Workplaces Act Complaint Form

This form is for complaints alleging violations of the accrued sick leave requirements under the New Mexico Healthy Workplaces Act

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