Effective July 1, 2022, New Mexico has enacted the Healthy Workplaces Act (HWA), requiring employers to provide paid leave to employees.
- All private employers
- All employees except employees subject to either Title II (air carriers) of the federal Railway Labor Act (RLA) or the Federal Railroad Unemployment Insurance Act (RUIA).
Covered Family Members:
- Employee’s spouse or domestic partner;
- Other “traditional” family members like children, grandchildren, grandparents, parents, siblings of an employee, or the employee’s spouse or domestic partner;
- Individual whose close association with the employee or the employee’s spouse or domestic partner is the equivalent of a family relationship;
- Domestic partners do not need to be “Registered.” A domestic partner is defined as an individual with whom the employee maintains a household and a mutually committed relationship without a legally recognized marriage.
Accrual of Leave:
- On July 1, 2022, or when employment begins, whichever is later, employees must accrue at least one hour of sick leave for every 30 hours worked.
- Indirectly, the law establishes a 64-hour annual accrual cap.
- The law appears to permit employers to frontload the full 64 hours at the beginning of the year.
- At the end of each year, unused leave will carry over into the following year.
- Employees may use leave in hourly increments, or the smallest increment the employer’s payroll system uses to account for these absences.
Rate of Pay:
- Employers must pay the same hourly rate with the same benefits as the employee would normally receive during typical hours worked.
Reasons for Leave:
- Mental or physical illness, injury, or health condition of an employee or family member;
- Medical diagnosis, care, or treatment of a mental or physical illness, injury, or health condition of an employee or family member;
- Preventive medical care for an employee or family member;
- Domestic abuse, sexual assault, or stalking suffered by the employee or family member so long as the leave is required for the employee to obtain medical or psychological treatment or other counseling, relocate, prepare for, or participate in legal proceedings, or obtain services; or
- Meetings at a child’s school or place of care related to the child’s health or disability.
- Employers must provide leave to employees upon verbal or written request from the employee or an individual acting on the employee’s behalf.
- Employees should make a reasonable effort to notify their employer in advance or as soon as possible. When possible, the employee must include the expected duration of the absence.
- Only when employees use leave on two or more consecutive workdays can employers then request “reasonable” documentation for the leave.
- “Sick” Time documentation: documentation signed by a health care professional indicating that the amount of leave taken was necessary.
- “Safe” Time documentation: police reports, a court-issued document, or a signed statement from a victim services organization, clergy member, attorney, advocate, the employee, a family member, or other person affirming the leave was taken for a covered purpose.
- Documentation may be written in the employee’s native language.
- Employers cannot require the documentation to explain the nature of any medical condition or detail of domestic abuse, sexual assault, or stalking.
- Employers cannot require a signed statement to be in a particular format or notarized.
- Employers cannot require the employee to search for or find a replacement worker to cover the hours that the employee will be using leave.
- An employer’s failure to provide leave based on its misclassification of an individual as an independent contractor is a violation of the law.
- Employers cannot retaliate or threaten any adverse action against employees using leave under the law.
- Employers are not allowed to count leave use that will lead to discipline, discharge, demotion, non-promotion, less-favorable scheduling, reduction of hours, suspension, or any other adverse action.
- The law does not require employers to pay out any unused leave when employment ends.
Violations of HWA:
|Leave Taken but Not Paid||Three times the wages that should have been paid or $500, whichever is greater.|
|Leave Requested but Denied & Not Taken||Actual damages or $500, whichever is greater.|
|Replacement Worker||Actual damages or $500, whichever is greater.|
|Retaliation (Non-Discharge)||Actual damages (back pay, wages, or benefits lost) plus $250 and equitable relief (rescission of disciplinary measures taken by the employer or other relief as determined by a court of law).|
|Retaliation (Discharge)||Actual damages (back pay, wages, or benefit lost) plus $500 and reinstatement or other equitable relief as determined by a court of law.|
|Willful Notice or Recordkeeping Violation||$250 per violation.|
|Independent Contractor Misclassification||Actual damages or $500, whichever is greater.|
Employers Next Steps
- If you are a Full-Service or Virtual HR client and would like our assistance with updating your policy, please email us.
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This content is provided with the understanding that HR Knowledge is not rendering legal advice. While every effort is made to provide current information, the law changes regularly and laws may vary depending on the state or municipality. The material is made available for informational purposes only and is not a substitute for legal advice or your professional judgment. You should review applicable laws in your jurisdiction and consult experienced counsel for legal advice. If you have any questions regarding this content, please contact HR Knowledge at 508.339.1300 or email us.