New Mexico Administrative Code › Title 11 - LABOR AND WORKERS' COMPENSATION › Chapter 1 - LABOR GENERAL PROVISIONS › Part 6 - HEALTHY WORKPLACES › Section 11.1.6.8 - ACCRUAL AND USAGE

Current through Register Vol. 35, No. 13, July 16, 2024
A. An employer
				may voluntarily frontload earned sick leave to an employee; however, the
				employer may not recoup any used frontloaded leave through payroll deductions
				even if the employee signs a written agreement authorizing the employer to do
				so or if the employee is separated before accruing the frontloaded
				leave.
B. Hours worked in excess of
				40 hours per seven-day work week do not accrue earned sick leave at a rate
				greater than one hour of earned sick leave for every 30 hours worked unless an
				employer chose a higher accrual rate for its employees or if required under the
				terms of any applicable collective bargaining agreement.
C. An employer cannot deem an employee's
				hours to be "cut" to a lower number due to taking earned sick leave. The
				employer must pay the employee all earned sick leave used according to the
				employee's regularly scheduled hours. If the number of hours that the employee
				works fluctuate from week to week, the employer shall use the average number of
				hours worked by the employee during the preceding two weeks when paying earned
				sick leave.
D. Per diem employees
				may use earned sick leave for hours they were scheduled to work or for hours
				they would have worked absent a need to use earned sick leave. For per diem
				employees or employees with indeterminate shift lengths (e.g., a shift whose
				length is defined by employer needs), an employer shall base the hours of
				earned sick leave used upon the hours the employer had a replacement employee
				for the same shift. If this method is not possible, the hours of earned sick
				leave shall be based on the hours worked by the employee when the employee most
				recently worked the same shift.
E.
				Earned sick leave must be paid on the same scheduled payday as regular
				wages.
F. Employers shall retain
				records documenting hours worked by employees, sick leave accrued or earned by
				employees and earned sick leave taken by employees. All records shall be
				maintained for a minimum of 48 months from the date the record was created.
				Employers shall produce these records for inspection upon request by the
				division.
G. Employers must provide
				employees with an accurate year-to-date written summary of earned sick leave
				accrued and used at least once every calendar quarter. This may be done
				electronically, including by email, website, mobile application or other
				reasonable method. If employers include this information on pay records or
				earnings statements provided to employees according to their normal pay
				schedule, employers are deemed in compliance with this provision.
H. Tipped Employees: Employees who are
				ordinarily paid less than the full minimum wage due to a "tip credit" must
				receive the full state or local minimum wage (whichever is greater) when using
				earned sick leave.
I. Salaried
				Employees: When using earned sick leave, salaried employees must receive their
				regular salary converted to an hourly rate based on the employee's regular work
				week and weekly salary amount. For example, someone who normally earns a weekly
				salary of $1,000 and whose normal work week consists of 40 hours, would be
				entitled to be paid $25 per hour for any earned sick leave used ($1,000 divided
				by 40). If the individual normally works 30 hours per week, then their hourly
				rate would be $33.33 for any earned sick leave used ($1,000 divided by 30). For
				a salaried employee whose work hours fluctuate from week to week, the hourly
				rate would be determined by dividing their weekly salary by 40.
J. Employees paid on task, piece or
				commission basis must receive the greater of their hourly or salary rate or the
				state or local minimum wage.
K.
				Employers are not required to pay an employee for sick leave accrued or earned
				pursuant to the requirements of the Healthy Workplaces Act that was not used
				upon the employee's termination, resignation, retirement, or other separation
				from employment.
L. Employers are
				not required to permit more than 64 hours of unused earned sick leave to carry
				over year-to-year.
M. If an
				employer requires an employee to provide documentation when the employee's use
				of earned sick leave results in an absence of two or more consecutive workdays,
				the employee shall be allowed 14 days from the date they return to work to
				provide such documentation.
N.
				Employers may elect a different 12-month period for benefits to be used for
				employees covered by a collective bargaining agreement than for employees not
				covered by a collective bargaining agreement.