New Mexico Sick Leave Law: The Complete Guide for 2024

On April 7th, 2021, Governor Michelle Lujan Grisham signed New Mexico House Bill 20, otherwise known as the Healthy Workplaces Act (HWA). The act outlines new requirements for paid sick leave in the state of New Mexico, effective July 1st, 2022.

When it comes to managing employee sick leave, employers should want to learn more about what is time and attendance software, and how it can help businesses manage employee leave.

The Healthy Workplaces Act (HWA)

The Healthy Workplaces Act (HWA) applies to all private employers in the state of New Mexico with one or more employees. It provides requirements and rules for paid sick leave as well as penalties for non-compliance. 

The intent of the new sick leave law is to better regulate employee benefits in the state of New Mexico, specifically regarding sick leave. The goal of the law is to help workers throughout New Mexico address their own health and safety needs, as well as that of eligible family members, without having to deal with lost wages and compensation. 

The state government also hopes that the worker turnover rate for New Mexico will improve by creating and enforcing paid sick leave requirements for private employers.

New Mexico Sick Leave Eligibility

According to the Healthy Workplaces Act, all full-time, part-time, seasonal, and temporary workers are entitled to New Mexico paid sick leave.

New Mexico Sick Leave Accrual

Under the Healthy Workplaces Act, employees begin to accrue sick leave upon the first day of employment (or July 1st, 2022). Employees shall accrue a minimum of one hour earned sick leave for every 30 hours worked, provided employers don’t choose to offer a higher accrual rate. 

Employees can accrue and use up to a minimum of 64 hours of paid sick leave in a given 12-month period, provided that employers don’t choose to offer a higher limit.

Any employees who are classified as exempt under the Fair Labor Standards Act (FLSA) will be assumed to work 40 hours a week for the purposes of sick leave accrual. However, if an exempt employee’s normal workweek is less than 40 hours, then employers should use that number for the purpose of sick leave accrual.  

Alternatively, employers may choose to grant employees the full 64 hours of sick leave for the coming year, on January 1st of that year. 

Note: Employers are required to allow employees to carry over any unused paid sick leave, however, employers are not required to allow employees to use more than the specified limit in any given 12-month period. 

New Mexico Sick Leave Pay Rule

Employees shall be compensated at the same hourly rate and with the same benefits for any taken sick leave, as they would for any hours worked. 

Eligible Uses for New Mexico Sick Leave

Employees can start using accrued sick leave on July 1st, 2022. After which, employees can use any earned sick leave as it is accrued from the start of employment. 

New Mexico employees may use any accrued paid sick leave for:

• The employee’s…
  • Mental or physical illness, injury, or health condition
  • Medical diagnosis, care, or treatment of the above mental and physical ailments
  • Preventive medical care
• The care of family members of the employee for…
  • Mental or physical illness, injury, or health condition
  • Medical diagnosis, care, or treatment of the above mental and physical ailments
  • Preventive medical care
• Meetings at an employee’s child’s school or place of care, related to the health or disability of the child
• Absence caused by domestic abuse, sexual assault, or stalking suffered by the employee or a family member. However, the leave must be in order to…
  • Receive medical or psychological counseling
  • Relocate
  • Prepare or participate in legal proceedings
  • Obtain services for or assist a family member with the above three actions

What Defines a Family Member?

In regards to New Mexico sick leave, a family member is defined as:

• A biological, adopted, or foster child, a stepchild, a legal ward, or a child to whom the employee stands in loco parentis
• 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
• A grandparent 
• A grandchild
• A biological, foster, step, or adopted sibling
• A spouse or domestic partner
• A spouse or domestic partner of a family member
• An individual whose close association with the employee or employee’s spouse or domestic partner is the equivalent of a family relationship

Do Employees Need to Provide Proof for Sick Leave?

Employers may not require employees to provide any form of proof for paid sick leave unless the employee requests two or more consecutive days of leave. 

Reasonable forms of documentation that an employer may ask for include: 

• Documentation signed by a health care professional indicating the amount of earned sick leave taken is necessary
• In the case of domestic abuse, sexual assault, or stalking, the following documentation is considered reasonable... 
  • A police report
  • A court-issued document
  • A signed statement from a victim services organization

It is important that employees provide documentation in a timely manner, however, employers may not delay the use of sick leave due to not receiving documentation.

How to Use Earned Sick Leave

Employers are required to authorize the use of paid sick leave upon written or oral request from the employee.

Employers should clarify their sick leave policy and expectations of employees when taking sick time in an employee handbook.  

It should be clear, employees need to make a “good-faith effort” to provide advanced notice of any foreseeable sick leave, as well as schedule the leave to be as least disruptive as possible to business operations. If leave is not foreseeable, the employee needs to notify the employer as soon as practical. 

Employees may use sick leave in any time increment that the employer’s payroll system or software will allow for. For instance, an employee may use sick leave for 4 hours of leave as opposed to a full day. 

Employer Requirements for New Mexico Sick Leave

In addition to understanding the basic components of the Healthy Workplaces Act, employers need to understand what is expected of them in regard to the new legislation. 

Generally, employers are prohibited from:

• Forcing an employee that requests paid sick leave to find a replacement or cover for the period of leave
• Requiring an employee to use another form of paid leave prior to resorting to paid sick leave
• Taking or threatening adverse action against an employee in order to prevent or deter them from exercising their rights under this law
• Taking or threatening adverse action against an employee for exercising their rights under this law
• Taking or threatening adverse action against an employee that has reasonably alleged violations of the law
• Taking or threatening adverse action against an employee for raising concerns about a violation of the act to the employer, government, or public
• Requiring an employee to sign a contract or agreement that would limit or prevent an employee from exercising their rights under the law
• An employer shall not count the use of sick leave in a way that will lead to discipline, discharge, demotion, non-promotion, less favorable scheduling, reduction of hours, or other adverse action

It is also important that employers understand how to classify employees, as misclassification of an employee as an independent contractor is a violation of the Healthy Workplaces Act.

What If an Employer Already Has a Sick Leave Policy?

Any employer with a pre-existing paid sick leave policy that meets the accrual requirements of the Healthy Workplaces Act may be used for the same purposes and reasons as specified by the act.

Important to note for employers, however, is that the sick leave must be in addition to any other leave that may be used for reasons and purposes other than specified by this act.

Termination and Transfer of Employment

According to the Healthy Workplaces Act, employers are not required to compensate any employees for unused, accrued sick leave upon termination of employment, a resignation, retirement, or other forms of separation of employment. 

Important to note, however, is that any employees who are rehired by the same employer within 12 months of separation are entitled to their previously accrued earned sick leave that was not used prior to separation. The employee can also begin to use and accrue sick leave upon reinstatement. 

Employees who are transferred to a new place of work but are still employed by the same employer, do not lose any accrued sick leave, nor do they stop accruing, or have to wait to use any sick leave.

Employer Recordkeeping Requirements

Employers are required to keep records documenting all hours worked by employees for the last 48 months. Employers must also keep records of all sick leave taken by employees in that same time period.

Notice and Posting Requirements

According to the Healthy Workplaces Act, employers are required to provide written or electronic notice, upon hiring an employee, of the employee’s:

• Right to paid sick leave 
• The manner in which the leave is accrued and calculated
• The terms of paid sick leave use
• That retaliation by the employer for use of sick leave is prohibited
• The employee’s right to file a complaint for any violations of the act

Employers are also required to display a labor law poster with the required information regarding the Healthy Workplaces Act in a conspicuous and accessible area in each place of employment. It is recommended that employers use a labor law poster subscription service, as this is an inexpensive and simple way to manage compliance with federal and state posting requirements. 

New Mexico Sick Leave Penalties and Fines

Any employer that violates any of the rules and regulations under the Healthy Workplaces Act shall be liable to the offended employee. 

Violations can include:

• Failure to compensate for taken paid sick leave
  • The penalty includes payment to the employee of an amount three times the wages that should have been paid out, or $500, whichever amount is greater
• Unlawful denial of requested sick leave
  • The penalty includes payment to the employee of an amount equal to the damages, or $500, whichever amount is greater
• Forcing an employee to search for or find a replacement worker or cover for the requested leave
  • The penalty includes payment to the employee of an amount equal to the damages, or $500, whichever amount is greater
• Each instance of retaliation prohibited by the act
  • The penalty includes payment to the employee of an amount equal to the damages including back pay, wages, and benefits lost, an additional $250 ($500 for termination), and other possible equitable relief 
• Notice or recordkeeping violations
  • The penalty includes a fine of $250
• Misclassification of an employee as an independent contractor
  • The penalty includes payment to the employee for actual damages or $500, whichever amount is greater

New Mexico Paid Sick Leave Policy Recommendations

Employers who are struggling with New Mexico paid sick leave, or are unsure of where to start with creating a New Mexico sick leave policy may want to contact a New Mexico HR and payroll company for assistance. 

Businesses that struggle with maintaining productivity when employees take time off under New Mexico Sick Leave, may want to consider employee scheduling software as a solution. So that when employees take time off under the law, you can ensure your schedule accounts for it.

Guest Author: Andrew Siegel

Andrew Siegel is the CEO and Founder of Payday HCM, a New Mexico payroll services company serving small and large firms with single-point-of-contact solutions for payroll, employee benefits, outsourced HR, and staffing. An expert in the HCM industry and accomplished author of Employee Engagement: The Path Payday HCM Path to Productivity and Profitability, Andrew has almost 40 years of experience helping countless businesses across the country manage their biggest asset: their emploEyees.