In an effort to promote a healthier workforce and help prevent the spread of illness, the Healthy Workplace Act (also known as the Paid Sick Leave Act) will go into effect on July 1, 2022. This legislation requires ALL private employers with one or more employees to allow employees to accrue and use earned sick leave.
There is a lot of information and details tied to this new Act, but here are the highlights to get you up to speed. For more information, please visit https://www.dws.state.nm.us/NMPaidSickLeave
How will the NM Healthy Workplace Act work and how will it affect your business?
Note that this is not an optional policy adoption – employers who do not honor an employee’s rights to sick leave face potential civil liability and fines.
Who is Eligible?
The Act applies to ALL New Mexico employees of private companies —full-time, part-time, seasonal, and temporary.
Who is NOT Eligible?
There are a few exceptions on employees covered, including:
- Anyone performing services for an employer outside the state of New Mexico
- Anyone performing services on tribal land
- Independent contractors
How do Employees Earn Paid Time Off?
The employee earns 1 hour of sick leave for every 30 hours worked and can accrue up to a maximum of 64 hours in a 12-month period. The employer can designate the 12-month period as calendar year, anniversary year, or fiscal year. While employees are allowed to carry balances over from year to year, there can only be a maximum of 64 hours in the employees earned leave “bank.”
Note that there is no grace/waiting period to be able to use earned time. Once the employee has accrued time, they are able to use it immediately. Also, if an employer prefers to, they can grant all the annual earned sick leave at once, rather than have their employees accrue it over time.
When an employee leaves the company they are not entitled to be paid for the time accrued in their earned leave bank, however if the employee returns to work for the company within 12 months, they are to be granted back the earned leave bank that they had earned prior to leaving the company.
What Can Earned Sick Leave be Used For?
In addition to their own illness or injuries, employees may use this leave for various reasons such as their qualifying family member’s illness or injury, or to deal with certain legal and family issues. For full details, visit the Department of Workforce Solutions website.
Process to Use Earned Leave:
When an employee needs to use earned sick leave, the employee must:
- Make an oral or written request to the employer to use the leave.
- When possible, the request must include the expected duration of the sick leave absence
- Make a reasonable effort to give the employer notice before using the earned sick leave.
- Use sick time in the same increments as other paid time off – for example, if company policy mandates that time off be taken in 1-hour increments, the earned leave will also be taken in 1-hour increments.
As part of this legislation, an employer:
- Must not require an employee to find a replacement worker as a condition of using earned sick leave.
- Cannot require an employee to use other paid leave before using earned sick leave and
- Cannot establish “black-out” dates for sick leave use.
- Employers are prohibited form retaliating against an employee for using their accrued sick leave.
- Keep records documenting hours worked by employees and earned sick leave accrued and taken by employees for four years.
Employees are to be paid on the same schedule as their normal payday at their usual wages. Please see the Department of Workforce Solutions website for details on paying tipped, salaried, commission and per diem employees.
Preparing Your Business
This new Act will likely cause significant changes for many small businesses. Here are a few items to consider before July 1:
- Review your budget and see if any adjustments need to be made to accommodate paid time off.
- Consider how will you manage potential manpower shortfalls.
- Establish tracking policies and procedures and work with your payroll company to put processes in place.
- Your employee handbook should be updated before July 1,2022 to include the Healthy Workplace Act.
- Notify employees about the new legislation.
- Businesses are required to post the Healthy Workplace Act poster in your offices by July 1. You can download at the link below.
As with any new piece of legislation, there are many more details and what we have covered is intended to provide you with a high-level overview. For full details and additional resources, visit https://www.dws.state.nm.us/NMPaidSickLeave