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Labor and Industrial Commission Meeting

This meeting shall be conducted through Zoom teleconferencing, and the public may attend and listen either online through Zoom or through the telephone. The meeting starts at 10:30 a.m. and will last as long as necessary.

Can an employer offer employees the opportunity to “borrow” unearned sick leave time when needed and then “repay” the time incrementally upon the employee’s return to work?

Our agency advises against a "borrowing sick leave" provision. This practice is administratively burdensome and complicated not only for the company but for the Labor Relations Division should we need to investigate a complaint. It is rife with opportunity for errors in calculations of time earned, used, and borrowed. Under Rules promulgated to enforce the provisions of the HWA, if the Division finds that an employer has not maintained accurate and complete records of paid sick leave accrual and usage, the Division may base its calculation of damages owed on other reasonable, credible evidence, including but not limited to the complainant’s estimates. (See NMAC.)

Also, the "paying back" of sick leave could be an improper payroll deduction under New Mexico's Wage Payment Act. The frontloading structure of accrual, which is allowed for under the Act, could address a company's concerns regarding an employee not having accrued enough sick leave at the time the employee needs to use the hours. The Legislature did not address this in the statute but from an agency perspective, a "borrowing" policy brings unnecessary complication, confusion, and exposure to liability.


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