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If an employee who earns over 64 hours of paid sick leave per year leaves the company and then returns within a year, does the employer have to reinstate all unused sick leave, even if it's over 64?

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.

If an employer incorporates sick leave into a PTO policy that does not track or ask employees for the reason leave is used, how must the employer record and report sick leave to be compliant with HWA?

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.

Notice of Rulemaking

The purpose of this public hearing will be to obtain input and public comment on proposed amendments to the regulations concerning Unemployment Compensation, Claims Administration. The proposed amendment will change the language in NMAC 11.3.300.314 concerning enforcement of compensable weeks penalties in cases of fraud to comply with the statutory language in Section 51-1-38, NMSA 1978.

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