New Mexico Paid Sick Leave

Yes. Anything that the employee who uses PSL has previously given you written authorization to deduct (e.g., insurance premiums, pension contributions, etc.) or that is required by law to be deducted (e.g., payroll taxes, child support, wage garnishments) may be deducted from PSL pay

No. Employers cannot require employees to use HWA leave. PSL may only be used upon the employee’s oral or written request. If the employee does not request use of PSL for a condition that may qualify for use under the Act, that is the employee’s choice, even if it results in no pay for the employee. This includes time that the employee may be off work due to FMLA or under another law such as the Promoting Financial Independence for Victims of Domestic Abuse Act.    

The end and beginning of a “year” are whichever 12-month period the employer elects to use for HWA purposes. This can be the calendar year, fiscal year, employee anniversary date, rolling 12-month period, or the 12-month period measured forward from the date of an employee’s first use of PSL.  

You should describe any leave accrued, used, carried over, or frontloaded in a manner that is sufficient to allow the Division to easily see whether you have complied with the Act or not. Failure to do so could be disadvantageous to employers if the Division investigates a complaint filed by an employee alleging violations of the Act. For this reason, it is recommended, but not required, that you clearly mark paid sick leave as such in records that you provide the Division.

HWA leave may be used if the employee is on unpaid leave, such as FMLA leave, provided the reason is permissible under the Act. On the other hand, the Act does not obligate an employer to allow an employee to take HWA leave concurrently with other paid leave, a double-dip situation. Remember, if an employer makes other paid leave available to employees beyond what is required by the Act (such as vacation or PTO), that employer may not require an employee to use that other paid leave before taking any available HWA leave.

That is how the Act is written. To resolve this discrepancy, the Legislature would need to address it through statutory amendment.

No. The Act does not carve out any religious based exemptions from the Act. Churches, like all employers, are prohibited from discriminating against employees because of race, age, religion, color, national origin, ancestry, sex, sexual orientation, gender identity, pregnancy, childbirth, or condition related to pregnancy or childbirth, physical or mental handicap or serious medical condition, or, if the employer has fifty or more employees, spousal affiliation.  

Under the Act employers are prohibited from counting an employee’s valid use of sick leave in a way that will lead to discipline, discharge, demotion, non-promotion, less favorable scheduling, reduction of hours, suspension, or any other adverse action.

The Act does not require employees to schedule use of sick leave in advance, except when the use of sick leave is foreseeable. In those cases, an employee is required to make a reasonable effort to provide oral or written notice of the need for such sick leave. And the employee must make a reasonable effort to schedule the use of sick leave in a manner that does not unduly disrupt the operations of the employer. When the use of sick leave is not foreseeable, the employee is only required to notify the employer orally or in writing “as soon as practicable.”   

The list of all permissible purposes for which employees can use leave is in the text of the law itself. Here are a few examples of what the types of events that qualify (this list is by no means all inclusive):

• Dental treatment
• Medical conditions related to pregnancy or childbirth
• Acupuncture
• Child’s IEP meeting
• Personal illness or the illness of a family member
• Surgical procedures
• Mental health therapy and counseling

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.