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 18.104.22.168 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.
No. Any attempt to require an employee of any kind to sign a contract or other agreement that would limit or prevent an employee from asserting rights under the HWA is prohibited by the Act. An employer’s attempt to impose such a contract, agreement, or policy shall constitute an adverse action under the Act that is punishable by statutory damages of $250 for each occurrence.
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.