County in New Mexico Adopts Paid Leave for “Any Reason” Law

The paid leave law for “any reason” law goes into effect on July 1 for Bernalillo County, New Mexico. It’s the first county to require that employers provide such leave. In making such a move, Bernalillo County follows in the footsteps of Maine and Nevada.

In a nutshell, the “Employee Wellness Act” requires that all businesses with at least 2 employees offer 1 hour of paid time off to all employees for any use for every 32 hours worked, up to a maximum of 56 hours a year over 3 years. Companies in their first year of operation are exempt.

The bill was approved in August 2019.

Although originally drafted as a paid sick leave bill, the measure was changed to a more general paid time off proposal that one of the bill’s sponsors said “better aligns with modern workplace benefit tracking and was in response to comments from the business community,” according to the Albuquerque Journal.

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Disciplined for taking sick time

Legislators noted in the bill that an analysis of paid sick leave in Albuquerque by the University of New Mexico’s Bureau of Business and Economic Research showed that part-time workers — those earning less than $15,000 a year and those employed in the leisure, hospitality, and retail — are less likely to have the right to earned sick time and that Bernalillo County lags behind the rest of the country in access to paid sick leave.

The lawmakers said 1 in 6 United States employees has reported that they or a family member has been fired, suspended, punished, or threatened by an employer because they needed to take sick time to care for themselves or a family member. In addition, the lawmakers said it would protect the “health, safety and general welfare” of people in the county to mandate paid sick leave.

They also suggested a business case for offering paid leave — that businesses that offer paid leave experience lower turnover.

The lawmakers said 1 in 6 United States employees has reported that they or a family member has been fired, suspended, punished, or threatened by an employer because they needed to take sick time to care for themselves or a family member.

Legislative details

The law applies to employers with 2 or more employees who have a physical premise within the unincorporated limits of the county and includes the county of Bernalillo.

Full-time, part-time, seasonal, and temporary employees are eligible to earn paid sick leave; however, independent contractors are not.

Employers can provide a more generous benefit if they choose to.

Employers may use a frontload method and provide for accrual of all earned paid time off at the beginning of the year.

3-year phase in

The paid time off requirement takes place via 3 increases, over 3 years. It applies to all employers with the following number of employees:

• 2 to 10 employees
• 11 to 34 employees
• More than 35 employees

Effective on July 1, 2020, July 1, 2021, and July 1, 2022:

• 2020: Employees shall not accrue or use more than 28 hours of earned paid time off in a year. They can accrue more if the employer’s policy provides for a higher limit on use or accrual
• 2021: Employees working for employers with 11 or more employees shall not accrue or use more than 44 hours of earned paid time off in a year, unless the employer’s policy provides for a higher limit on use or accrual
• 2022: Employees working for employers with 35 or more employees shall not accrue or use more than 56 hours of earned paid time off in a year, unless the employer’s policy provides for a higher limit on use or accrual

Earned paid leave accrues on the employee’s first day of employment. However, employees can’t use earned paid time off until they have worked 56 hours in a year. In addition, employees can use leave beginning on the 90th calendar day. They can use it before then if the employer specifies that employees can use accrued time earlier.

Additional rules

Employers can advance leave if they choose to.

Unused accrued leave carries over to the following year.

Employers must provide paid time off when requested by the employee or an employee’s:

• Family member
• Caretaker
• Medical professional acting on the employee’s behalf

Employees are required to provide notice to employers as soon as practicable for leave that is foreseeable. Also, when possible, they should schedule the use of paid leave “in a manner that does not unduly disrupt the operations of the employer.” Employers, however, may not require advance notice for employees to use paid leave for emergency or illnesses.

Employees do not have to find a replacement worker as a condition of using earned paid leave.

Employers:

• Cannot discipline, discharge, demote, refuse to promote, suspend, or take any adverse employment action against workers who take advantage of their right to use leave under the new law
• Must provide, on each payday, an account of the employee’s hours of paid leave available for use on each payday
• Must maintain a record of each employee’s receipt, accrual, and use of paid leave

The information the employer obtains that relates to the employee’s reason for the leave is confidential. They should not disclose it unless they receive the employee’s permission, or it’s necessary to validate insurance disability claims or provide accommodations under the Americans with Disabilities Act.

Employers cannot discipline, discharge, demote, refuse to promote, suspend, or take any adverse employment action against workers who take advantage of their right to use leave under the new law.

Penalties

In addition to civil remedies, any employer that violates the law will also be liable for a civil penalty of $50 a week for each violation, not to exceed $500 for each offense.

Enforcement

Employees may file complaints against employers with the county, which will investigate and adjudicate the complaints. However, employees must exhaust their administrative remedies before filing a claim in court.

The Board of County Commissioners will review a report of paid time off every year after the effective date of the ordinance in order to review its adequacy.

Opposition

A number of business groups had opposed the measure, among other things, pushing for changes that would exempt smaller businesses such as those with less than 50 employees, according to The Albuquerque Journal. The newspaper also reports that groups backing the bill include the AARP, Equality New Mexico, and the New Mexico Center on Law and Poverty.

Paid leave for any reason in other jurisdictions

The New Mexico county is following a trend started by Maine and Nevada which both passed laws last summer granting employees mandatory paid time off for any reason.

Another New Mexico jurisdiction is considering a paid time off ordinance. The Albuquerque Journal reports that 2 Albuquerque city councilors ordered an economic analysis of the paid leave legislation the Bernalillo County Commission approved to see how it would work in Albuquerque.

In addition, an executive order signed by Democratic Gov. Michelle Lujan Grishams in January 2020 mandates that state employees in New Mexico receive 12 weeks of paid parental leave. Employees can use the leave for the birth or adoption of a child. Grisham’s office says it’s the first time the state has offered the benefit.