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If an employee chooses to have their remaining sick leave paid out at the end of the year according to an employer’s policy, can the employer pay out the sick leave at ½ the employee’s hourly rate?

No. If an employer has a policy that permits employees to choose to have their unused sick leave paid out at the end of the year instead of carrying over, they must pay employees according to their full hourly rate. However, an employer is not required to give employees the option to cash out unused sick leave instead of carrying it over into the next year.

How do I file a complaint?

A complaint may be filed online or in-person.

To file a complaint online go to https://www.dws.state.nm.us/NMPaidSickLeave and click the link under File Now in either English or Español. You may also download a complaint form under Resources, Guides, and Training that you can physically fill out and sign then mail, email, fax, or drop-off to any Labor Relations Division office or to any New Mexico Workforce Connection Center across the state.

Any New Mexico Workforce Connection Center will assist in providing access to a paper complaint form that you may fill out and leave with staff or take home and bring back, mail, email, or fax. Free access to computers are also available in each location to fill out a complaint online.

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.

Can employees waive any of their Healthy Workplaces Act rights through union MOUs?

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.

Can employers ever require employees to use their paid sick leave when absent for a permissible purpose?

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.    

Do we need to use specific terms to denote paid sick leave or PTO that includes paid sick leave on employee paystubs?

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.

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