Curtis Wynne/News-Sun
The law of the land, starting July 1, will be an hour earned sick leave for 30 hours worked. For virtually all privately employed workers, full time, part time, temporary and seasonal.
The Healthy Workplaces Act of 2021, requiring all private employers in New Mexico to allow employees to accrue and use a benefit called earned sick leave takes effect on July 1.
The act exempts federal, state and local government employers from the rule.
Various reasons for a worker using the legislatively mandated sick leave include the employee’s or their family member’s illness or injury, or to deal with certain legal and family issues.
The Democrat-led Legislature in the regular session of 2021 outvoted virtually all the Republican representatives and senators from the state’s southeastern corner, who were concerned about costs to businesses and ultimate costs to consumers, to establish the rule.
But with the effect date of the new law just around the corner, some officials are trying to see the glass at least half full.
“I think what the pandemic did was make people really aware of how important it is to have sick leave available,” said Jennifer Grassham, president and CEO of the Economic Development Corporation of Lea County. “When people are sick, you do not want them to come to work that day. Not only do they need to get better so they can get back to work, but you also don’t need to get the rest of your workforce, your employees, sick.”
Hobbs Mayor Sam Cobb, owner of RMS Foods, said his company has few problems with the new law, but he knows many other, especially smaller, business owners are suffering headaches over compliance.
“All of the businesses are having to completely revamp employee policies. It’s kind of been a problem for some of our business community, but it is what it is,” Cobb said. “Quite honestly, our particular business has had a pretty employee-friendly PTO (paid time off) program for some time, so we’re not having to make massive changes.”
Aside from the added cost for businesses that previously offered little or no sick leave, the biggest headache is converting from a 40-hour standard to 30 hours, according to Hobbs Chamber of Commerce President and CEO Patty Collins.
“Most of our software is geared toward the 40-hour week, so when you’re trying to do the one hour for every 30 hours worked, it comes into a fraction when you’re trying to do payroll for two weeks or a week,” Collins said. “We’re having to plug in the point three three three three three … and then, of course, you have to round it off to the three three three four.”
For full-time workers at 40-hour weeks, the calculation comes to four hours in three weeks, but few employees are paid on a three-week basis.
The act requires employers to keep good records and accrue an hour for every 30 hours any worker in New Mexico works, even beyond the 64 “earned sick leave” hours employers are required to allow the employee to take.
“I know some businesses will (have to make changes) and I know it’s going to have a fiscal impact on them,” Cobb said. “All of that ends up adding to the cost of doing business which eventually ends up being passed on to the consumer. I’m certainly an advocate for taking care of the employees, but it seems we continue to add to the cost of doing business. I know a lot of our business community are not in favor of it, but it’s the law of the land so we will comply.”
Collins said the changes to be made likely will help many employees, but she understands the ire of some business leaders.
“I think it’s going to be a heartache for some of our employers, but in the long run, it’s going to benefit quite a few of our employees,” Collins said. “I think the ones that are going to be affected most negatively are the restaurants because up to now they haven’t had to produce any kind of leave. Now, they’re going to have to give their employees leave and calculate it in their pay.”
The chamber executive continued, “I think the majority of our employers that have full-time employees are already doing something for their employees.”
Michael Moore, franchisee of the Pizza Inn, said he’s still learning how to comply with the law and intends to participate in a webinar this week with that goal in mind.
The act authorizes the Labor Relations Division (LRD) of the New Mexico Department of Workforce Solutions (DWS) to investigate violations and enforce the Healthy Workplaces Act.
According to the DWS/LRD earned sick leave website, “Employers who do not honor an employee’s rights to sick leave face potential civil liability.”
In addition to the first webinar held Friday, the DWS scheduled Zoom-based webinars for Thursday, June 23, at noon and June 29 at 4 p.m. Access to those is from a link on the DWS earned sick leave web page at http://www.dws.state.nm.us/NMPaidSickLeave.
An extensive question-and-answer section begins on the DWS web page also, including the following selections:
Q. What are some examples of permissible purposes for which employees can use paid sick leave?
A. The list of all permissible purposes for which employees can use leave is in the text of the law itself. Here are a few examples of what the types of events that qualify (this list is by no means all inclusive):
• Dental treatment
• Medical conditions related to pregnancy or childbirth
• Acupuncture
• Child’s IEP meeting (Individualized Education Program)
• Personal illness or the illness of a family member
• Surgical procedures
• Mental health therapy and counseling
Q. Are employers required to show accrued paid sick leave on employee pay-stubs?
A. No, but employers are required to give each employee written notification of sick leave accrued and used at least once per calendar quarter. Employers may satisfy this obligation by including that information on check stubs or earnings statements, which may be easier for some employers.
Q. If an employer has a policy that provides for more generous accrual, usage, or carryover limits than the minimums required in the act, can they still be found in violation of the act?
A. Yes. The Division requires these employers to honor their own policies. The division will enforce those more generous provisions. Employers in violation could face assessments of improperly denied leave pay, statutory damages, and interest.
Q. How does the Healthy Workplaces Act apply to out-of-state employees and employers?
A. The Healthy Workplaces Act is designed for employees performing work in New Mexico to accrue paid sick leave. Whether your business is based in New Mexico or out of state, your employees performing services in New Mexico must accrue paid sick leave.
Q. Can employers cap paid sick leave accruals when the employee’s balance reaches 64 hours?
A. No. Employers can never cap an employee’s PSL accrual. However, the New Mexico Legislature wrote the Act to permit employers to cap use at 64 hours per year. Therefore, employers who cap PSL use should be sure to notify their employees that sick leave balances may not reflect the number of hours they will be allowed to use in a given year.
Q. Do part-time employees also accrue sick leave?
A. Yes. Part-time, temporary, and seasonal employees must also accrue paid sick leave at a minimum of 1 hour per 30 hours worked. This is calculated on a rolling basis, so a part-time employee who works 20 hours each week will accrue 0.67 hours of paid sick per week. By the end of the third week, that employee will have a paid sick leave balance of 2 hours.
Q. Must employees accrue paid sick leave while out of the office on vacation or while using sick leave?
A. No. Employees only accrue a minimum of 1 hour paid sick leave for every 30 hours actually worked. However, an employee who is required to remain on the employer’s premises or so close thereto that he cannot use the time effectively for his own purposes is working while “on call.” This would be compensable time and therefore PSL would accrue. On the other hand, an employee who is not required to remain at the employer’s premises but is merely required to leave word at his home or with company officials where he may be reached is not working while on call. If the employee is fully able to use the time for his or her own purposes while on call, then PSL would not accrue.
Q. Can the Paid Sick Leave poster published by NMDWS be used to satisfy the requirement of written notice to employees upon hire?
A. Yes. The Labor Relations Division also recommends you provide notice of the act and any employer policy changes to all employees affected by the changes.
Q. If an employee who earns over 64 hours of paid sick leave per year leaves the company and then returns within a year, does the employer have to reinstate all unused sick leave, even if it’s over 64?
A. Yes. Whatever paid sick leave balance the employee had upon departure must be reinstated upon rehire within 12 months, even if that’s more than 64. The only exception is if the employee chose to be paid out all unused hours to when they left the company. In that case, the hours were deemed “used” when cashed out upon separation and do not need to be reinstated.
Q. Is earned sick leave a “benefit earned” that must be reported on employee paystubs?
A. Yes. And employers must report additional details of this benefit (such as year-to-date accrual and usage) in writing to employees at least once every calendar quarter if that information is not included on the pay stubs.
Q. Many restaurants use apps where employees can call off a shift and the app automatically opens that shift to other employees. Is that practice legal under the act?
A. While an employer may prescribe procedures for calling off work, an employee’s failure to provide advance notice in unforeseeable situations does not permit the employer to deny leave. Also, finding a replacement worker is never the employee’s responsibility. Failure to find a replacement may not be used as reason to deny leave.
Q. Some employees choose to earn higher wages instead of having other benefits. Can these employees opt out of the act’s requirements so they can earn higher hourly rates?
A. No. Employee rights under the act are non-waivable.
