State Publishes Regulations and Guidance for New Paid Sick Law

On June 21, 2022, the Department of Workforce Solutions issued final regulations for the state’s Healthy Workplaces Act (Act), effective on July 1, 2022. The department also released a series of FAQs. The Act was discussed in the March 30, 2021 edition of Compliance Corner. Employees covered by the law (including temporary and seasonal workers) can accrue one hour of leave for every 30 hours worked (the FAQs point out that these are hours actually worked, so vacation time does not count), which they can use for sick time, safe time (e.g., reasons relating to domestic abuse or assault), or other reasons for themselves or for family members. Under the Act, employers can provide a higher accrual rate, or they can provide their workers with 64 hours of leave upfront on January 1 of each year. Employers are not allowed to require employees to take other leave before taking this leave, even if the leave is for a reason covered by the Act.

The FAQs state that the Act applies to employees performing work in the state, regardless of whether the employer is based in the state or elsewhere. However, the Act does not apply to work performed on tribal land. The department does not provide definite answers regarding remote workers, other than to say that remote workers working in the state are likely covered, unless they work for employers based outside the state and their services are not provided in the state. Those remote workers who work outside the state are not covered, even if their employers are based in the state. The department considers these questions to be heavily dependent on the facts and circumstances.

Although the Act does not cap the number of hours an employee can accrue, employers are not required to allow employees to use more than 64 hours of this leave per twelve-month period. The FAQs clarify that paid leave provided by employers before July 1, 2022, does not count toward employers’ obligation to provide leave under the Act. If employers want to frontload hours in 2022, then they must provide 64 hours of leave on July 1, 2022. Note also that the new regulations cap hours that can be carried over to no more than 64 hours.

Regulations require employers to give written or electronic notice to an employee at the commencement of employment of the employee’s rights to earned sick leave; the manner in which sick leave is accrued and calculated; the terms of use of earned sick leave as guaranteed by the Healthy Workplaces Act; that retaliation against employees for using sick leave is prohibited; the employee’s right to file a complaint with the division if earned sick leave accrual or use is denied or if the employee is retaliated against; and all means of enforcing the Healthy Workplaces Act. This notice must be in English, Spanish, and any other language spoken by 10% or more of the employer’s workforce. Employers are also required to display a poster with this information in a place where employees can see it.

Note that an employer can have a more generous leave policy than that required under the Healthy Workplaces Act (the Act); however, according to the FAQs, that policy must provide at least the same accrual rate as the Act and ensure the hours accrued can be used at a minimum for the same purposes and under the same terms and conditions as provided for by the Act.

Employers in the state or with employees in the state should be aware of this law, the regulations and the guidance.

Healthy Workplaces Act »
Healthy Workplaces Regulations »
New Mexico Paid Sick Leave FAQs »