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Can employers frontload fewer than 64 hours?

Employers may frontload less than the full 64 hours only in the case of employees whose employment begins after January 1 of a given year, in which case employers may frontload a prorated portion of the 64 hours to use during the rest of the year.

Can an employer include sick leave in their PTO plan?

While it is possible to have a single PTO policy and be compliant with the Act, doing so is not the right choice for every business. Employers who choose this route must ensure their PTO policy tracks the Healthy Workplaces Act requirements in every regard. For instance: it must provide the same or more generous accrual, carryover, and use benefits; employees must start accruing leave upon hire; employees must be allowed to use the PTO for all the same purposes permitted by the Act, including those related to family members; the policy must incorporate the Act’s rules on recordkeeping, notice, payment for leave used, etc.

Can an employer discipline an employee for fraudulently using sick leave or for not providing documentation in a timely manner?

It is against the law to retaliate against an employee for exercising rights under the Act. Employers have the right to discipline employees according to their own internal policies, but they should use caution when disciplining employees in connection with earned sick leave use to ensure that discipline is not being used in a retaliatory manner or to discourage employees from using earned sick leave in the future. If a complaint is filed, the Division will make a finding as to whether the discipline was administered in relation based on the facts discovered through our investigation.

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.

Are telecommuters and remote workers considered covered employees under the Act?

It is impossible to give a precise answer to this question because of the numerous scenarios that may come up. In general, however, telecommuters and remote workers who:

  • Perform services within the geographical boundaries of New Mexico, other than on tribal land, and whose employers are incorporated, registered, based, physically located, or are conducting their stated business in New Mexico (a “New Mexico employer”) are most likely covered;
  • Perform services remotely while within the geographical boundaries of New Mexico, other than on tribal land, and whose employers are based or incorporated out of state (an “out-of-state employer”) but do provide significant services in New Mexico or conduct significant business activities in the state, are probably covered. The Division will determine coverage on a case-by-case basis after reviewing the facts presented in a PSL complaint. An employer must have “minimum contacts” with our state as defined by law for the Division to have jurisdiction;
  • Perform services remotely while within the geographical boundaries of New Mexico, other than on tribal land, but whose employers are based out of state and do not provide significant services in New Mexico or conduct significant business activities in the state, are most likely not covered due to a lack of minimum contacts with our state by the employer;
  • Perform services remotely but do so while physically outside of the geographical boundaries of New Mexico are not covered regardless of whether their employers are based in New Mexico or are out-of-state employers with minimum contacts. The work upon which the accrual, usage, and payment of paid sick leave is based must have been performed in New Mexico for the Division to have jurisdiction;

Remotely perform some services in New Mexico and other services not in New Mexico, are probably partially covered by the Act for the services performed in New Mexico, but only if the employer is also a New Mexico employer or an out-of-state employer with minimum contacts in New Mexico.    

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