Mandatory paid sick leave is a contentious matter in New Mexico.
From the employee perspective, it is only fair that workers can stay home when ill without worrying about how they will support themselves. However, many employers see mandatory paid time off as government overreaching as well as too great a financial burden.
On April 8, Gov. Michelle Lujan Grisham signed the Healthy Workplaces Act into law. Employers should closely review the act for nuance, but the following takeaways should be universally informative.
What’s in the act?
First, it is important to understand the substance of the act. The effective date of July 1, 2022, gives employers plenty of time to plan and prepare for compliance. Under the act, all employees of private employers, regardless of part-time/full-time, exempt/non-exempt, temporary/permanent status, are eligible to accrue one hour of earned sick leave for every 30 hours worked (exempt employees are assumed to work 40 hours per week) beginning on the employee’s first day and available for use immediately.
There is no maximum accrual; however, the act does limit use to 64 hours per “12-month period” with the balance carrying over from year to year. Employers need not worry about liability associated with the accrued time because the act clearly states that it is not to be paid out upon separation from employment. Employers also get to choose the “12-month period” from a list of options that include a calendar year and any fixed 12-month period such as a fiscal year or the employee’s anniversary year. Employers should consider their ability to consistently administer whichever period they elect.
Under the act, employees may use the leave for a broad array of reasons beyond the employee’s own physical health, including: mental health, medical diagnosis, treatment of a mental or physical illness, and preventive care for the employee or a family member; meetings at a child’s school/childcare provider related to the child’s health/disability; and for absences related to domestic abuse, sexual assault, or stalking suffered by the employee or a family member. “Family member” is defined broadly in the act, so it is best to accept the employee’s assertion of a family relationship.
No specific period of notice can be required before an employee uses earned sick leave, nor can employees be required to cover their shift. Although the act provides that employees should make “all reasonable efforts” to provide notice and not “unduly disrupt the operations of the employer,” these statements are aspirational and employers do not have any recourse if they are not followed. Additionally, employers cannot require documentation such as a doctor’s note unless the employee uses two or more consecutive days of leave. Employers should be mindful of the confidential nature of the circumstances of leave and set up a strong policy/procedure for properly handling requests and documentation.
What if you already offer PTO?
Next, employers with existing PTO policies may only have to make minimal changes to comply with the act. A PTO policy can no longer be limited to certain classes of employee or require completion of an introductory period, nor should use of PTO be limited to specific reasons, and it must provide for more than one hour of PTO for every 30 hours that each employee regularly works.
We recommend adding a provision stating that time off under the policy is expressly authorized for any reason, including all of the reasons stated in the Healthy Workplaces Act. It is important to note that the act’s required accrual exceeds that required under Executive Order 13706, which established paid sick leave for federal contractors (56 hours annual maximum accrual). Therefore, private employer federal contractors may also need to update their policies in order to comply.
Finally, and perhaps most importantly, the act contains strict anti-retaliation provisions prohibiting any adverse employment action associated with employees’ use of earned sick leave. Management employees should be trained on the provisions of the act to avoid violations.
Cristin Heyns-Bousliman, Esq., is Principal and Practice Leader of REDW’s Human Resources Consulting group. REDW is headquartered in Albuquerque and has offices in Phoenix and Edmond, Oklahoma. Heyns-Bousliman’s experience includes human resources management and strategy, employee relations and engagement, and compensation and benefits. As a former litigation attorney specializing in employment law, Heyns-Bousliman has an in-depth legal understanding of federal and state employment laws. The executive’s desk is a guest column providing advice, commentary or information about resources available to the business community in New Mexico. To submit a column for consideration, email firstname.lastname@example.org.
Editor’s note: An earlier version of this story included an incorrect spelling of the author’s name. Her name is Cristin Heyns-Bousliman.