New Mexico Paid Sick Leave

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.

Not necessarily. Not only must you provide at least the same accrual rate as the Act, but you must also ensure the hours accrued can be used at a minimum for the same purposes and under the same terms and conditions as provided for by the Act. You must track leave usage and be able to provide documentation to establish compliance if an employee files a complaint against you. Also, the Division will require employers to honor their own policies and we will enforce those more generous provisions. Employers in violation could face assessments of improperly denied leave pay, statutory damages, and interest.

The Healthy Workplaces Act is designed for employees performing work in New Mexico to accrue paid sick leave. Whether your business is based in New Mexico or out of state, your employees performing services in New Mexico must accrue and be allowed to use paid sick leave.

The Healthy Workplaces Act does not apply to any work done on Tribal Land, including Trust Land, and the Division has no authority to enforce its laws for work performed there. This is true whether the employer is owned or operated by a tribe or tribal member or a non-tribal member. Any business owned or operated by a tribe or tribal member is exempt from the requirements of the Act, even if work is performed off tribal land. 

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.