The Healthy Workplaces Act (HWA) signed into law by Governor Lujan Grisham on April 8, 2021, requires all private employers to provide at least 64 hours of paid sick leave to employees. The HWA is effective beginning July 1, 2022
Covered Employers and Employees
The HWA obligates all private employers employing at least one employee to provide paid sick leave. This includes full-time, part-time, seasonal and temporary employees. Public employers such as the United States, the state or any political subdivision of the state are exempt from the law’s requirements.
Employers May Choose to Accrue or Grant Leave
Employees shall either accrue a minimum of one (1) hour of sick leave for every thirty (30) hours worked or an employer may grant at least 64 hours of sick leave on January 1 of each year (although adjustments may need to be made to the balances of full-time employees on a quarterly basis to ensure that they receive at least 1 hour for every 30 hours worked). Employees must be provided with and be able to use at least 64 hours of leave during a 12-month period unless the employer chooses higher accrual rates or chooses to grant more than 64 hours. If granting leave at the start of the year, employers may give a pro rata portion to employees beginning employment after January 1. An employer may choose the 12-month period in which paid sick leave may be used such as the calendar year, fiscal year, or rolling 12-month period measured forward from when an employee first requests leave.
Leave May be Requested and Used for Absences Due to:
1) The employee's own (a) mental or physical illness, injury or health condition; (b) medical diagnosis, care or treatment of a mental or physical
illness, injury or health condition; or (c) preventive medical care.
2) The employee's need to care for a family member's (a) mental or physical illness, injury or health condition; (b) medical diagnosis, care or treatment of a mental or physical illness, injury or health condition; or (c) preventive medical care.
3) Meetings at the employee's child's school or place of care related to the child's health or disability.
4) Absences due to domestic abuse, sexual assault or stalking suffered by the employee or a family member of the employee provide that the leave is required for the employee to: (a) obtain medical or psychological treatment or other counseling; (b) relocate; (c) prepare for or participate in legal proceedings; or (d) obtain services or assist a family member of the employee with any of the activities set forth in subparagraphs (a) through (c) of this paragraph.
Covered Family Members
An employee’s spouse or domestic partner or a person related to an employee or employee’s spouse or domestic partner as:
1) a biological, adopted or foster child, a stepchild or legal ward, or a child to whom the employee stands in loco parentis;
2) a biological, foster, step or adoptive parent or legal guardian, or a person who stood in loco parentis when the employee was a minor child;
3) a grandparent;
4) a grandchild;
5) a biological, foster, step or adopted sibling
6) a spouse or domestic partner of a family member; or
7) an individual whose close association with the employee or the employee's spouse or domestic partner is the equivalent of a family relationship;
Additionally, under the New Mexico Caregiver Leave Act, employees are permitted to use available accrued sick leave to care for a family member, which is defined as an employee’s spouse, domestic partner, or (whether by blood marriage or adoption) a parent, grandparent, great-grandparent, child, foster child, grandchild, great-grandchild, sibling, niece, nephew, aunt, or uncle.
Requesting, Documentation and Utilization
If sick leave is foreseeable, employees must make a reasonable effort to provide their employer with verbal or written notice of the need for such sick leave as far in advance as possible and to schedule the use of sick leave in a manner that does not unduly disrupt the operations of the Company. If sick leave is unforeseeable, employees must notify their employer verbally or in writing as soon as practicable.
For absences of two (2) or more consecutive workdays, employers may request appropriate documentation showing that sick leave was used for one of the qualifying reasons.
Employers are required to allow sick leave to be used in increments of the smallest amount the payroll sytem allows. When utilized, sick leave shall be paid at the employee’s current rate of pay.
Employers may not require that the employee find a replacement worker to cover the hours the employee will be using to take sick leave.
Carry Over and Transfer
Unused sick leave shall carry over from year to year. However, employers may limit the usage of sick leave to 64 hours during the chosen 12-month period. When there is a separation from employment, and the employee is rehired within twelve months of separation by the same employer, previously accrued earned sick leave that has not been used shall be reinstated. Further, the employee shall be entitled to use accrued earned sick leave and accrue additional earned sick leave upon re-commencement of employment. If an employee is transferred within the company to a different division, all accrued sick leave accrued at the prior division will be provided to the employee.
The law does not require employees to pay out any unused accrued or earned sick leave upon separation from employment.
Notice to Employees
Employers are obligated to provide written or electronic notice to an employee at the start of employment to include:
1) the employee's right to earned sick leave;
2) the manner in which sick leave is accrued and calculated;
3) the terms of the use of earned sick leave as guaranteed by the Healthy Workplaces Act;
4) that retaliation against employees for the use of sick leave is prohibited;
5) the employee's right to file a complaint with the division if earned sick leave as required pursuant to the Healthy Workplaces Act is denied by the employer or if the employee is retaliated against; and
6) all means of enforcing violations of the Healthy Workplaces Act.
Employers must post a poster containing this information in a conspicuous place in each establishment where employees are employed.
The HWA prohibits retaliation and provides avenues for employees to make a civil complaint against an employer for violations of the HWA. An employer that has been found to have violated the HWA is subject to paying damages and fines and other possible equitable relief as determined by a court of law.
Important to Note
Although the HWA does allow for employers with an existing paid time off (PTO) policy to use this policy to comply with the law, the existing policy must comply with all of the requirements of the HWA, including not requiring advanced approval of leave requests.
Also, employers are not required to pay out accrued unused sick leave at separation of employment, but are required to pay out accrued unused vacation, annual leave or PTO at separation of employment. This creates an interesting recordkeeping dilemma and the question of how employers would plan to calculate the amount of pay out at time of separation from employment, especially if you continue to call the leave bank and policy a “PTO” policy.
With the above issues in mind, it is suggested that employers be prepared to separate out sick and annual/vacation leave policies and create two separate banks of accrued leave.
Employers should review current policies and consult with their HR Consultant or legal counsel to ensure compliance with the HWA.