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Can employees use HWA leave and other types of leave at the same time?

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.

Are churches that do not recognize domestic partnerships exempt from granting domestic-partnership-related sick leave?

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 our current attendance policy, using sick leave is considered an unscheduled absence. Several of these absences result in a write-up. Would such a policy be considered retaliatory under the Act?

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.”   

What are some examples of permissible purposes for which employees can use paid sick leave?

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

How do we calculate accrual and use for salaried exempt and non-exempt employees?

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.

Does the HWA supersede federal law or the Bernalillo County PTO Ordinance enacted in 2020?

State law, including the HWA, supersedes federal law where the protection afforded an employee under the state law offers greater protection to the employee than the federal law. Similarly, to the extent that a municipal or county ordinance provides for greater employee protections than state law, an employer must comply with the provisions most protective to employees. 

How would this law apply to employers that allow unlimited paid time off?

If your unlimited leave may be used for all the same purposes and under the same (or more generous) terms and conditions as what the Act requires, including those related to notice and documentation, you will be compliant. However, you will have to keep track of any time used so that if a complaint is filed against you, the Division will be able to determine whether that employee accrued and was allowed to use the mandatory minimum amounts of leave.

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