New Mexico Paid Leave FAQs

FAQs and More Details on the New Mexico Paid Leave Act

The New Mexico Department of Workforce Solutions (the “DWS”) has issued some guidelines and information (hereinafter the “Guide”) about the New Mexico Paid Leave Act also known as the Healthy Workplaces Act (“HWA”) which became effective on July 1, 2022. We previously wrote an article (here) about New Mexico enacting the HWA. Generally, the New Mexico Paid Leave Act requires that ALL private New Mexico employers provide PAID sick leave for their workers at the rate of one hour of paid leave per 30 hours worked. Here are answers to some frequently asked questions and some additional details.

Does the New Mexico Paid Leave Act Apply to Salaried Workers?

Yes, but salaried workers will not get extra money when they take paid time off under the HWA. As the Guide says on p. 8, “[e]mployers do not have to allow salaried employees to double dip when using paid sick leave.”

What about Paid Leave for Remote and Work-From-Home Workers?

Generally, remote workers are covered if they work in New Mexico and their employer is located or does substantial business in New Mexico. A remote worker located in New Mexico but whose employer is in, say, Virginia may or may not be covered depending on the specific facts.

How much am I Entitled to be Paid under New Mexico Paid Leave Act?

The amount paid is an employee’s regular rate of hourly pay, but never less than the prevailing minimum wage. Thus, if an employee receives $15 an hour, then $15 an hour must be paid for HWA paid leave. If the worker has multiple pay rates, then the HWA leave rate is the average of the pay rates. For tipped workers in New Mexico, the rules are a bit uncertain for now, but tipped workers must at least receive the full state or local minimum wage (whichever is greater) when using HWA earned sick leave. See Guide, p. 7.

When do I get paid my Paid Leave?

Generally, you must get paid at the next regularly scheduled pay date.

Is There a Limit on the Number of New Mexico Paid Leave Hours I can Accumulate?

No. As the Guide states on p. 7, “[e]mployers are never permitted to stop an employee’s accruals…” The only limit is on usage — which is 64 hours per year (however the employer defines a “year”). So, a worker that works a standard 40-hour week will work about 2,000 hours and earn about 67 hours of paid leave. But only 64 can be used. The other three hours will carry over into the next year.

What Counts as “Hours Worked”?

All hours worked “count” for purposes of the HWA. So, overtime will count as will various other hours worked. For example, in New Mexico, hours used to travel between job sites are considered “hours worked” and, thus would count towards HWA paid leave time.

Can I Bring a Private Lawsuit if My Employer Violates the New Mexico Paid Leave Act?

Yes, private lawsuits can be filed for violations of the New Mexico HWA. See Guide, p. 14 (“The state Attorney General’s office or any person or entity with members affected by violations of the Act may also file a civil action on their own or with a private attorney.”) There are many ways that an employer can violate the HWA. For example, the employer must begin offering HWA paid leave immediately upon a person’s hiring. Likewise, an employer must provide notice of a worker’s rights under the HWA and must provide an accounting to workers. Employers also cannot retaliate against a worker for using HWA paid leave. If you think your employer is violating the HWA, call us here at Herrmann Law. We are top-tier, worker-focused, employee rights advocates and we can help you vindicate your rights as an employee.

What are the Punishments for Employers who Violate the HWA?

Employers who violated the New Mexico Paid Leave Act can be required to pay monetary damages, interest, attorneys’ fees, and costs and can be subject to other relief (such as being required to reinstate an employee wrongfully terminated).

Can I “Cash Out” My HWA Earned Paid Leave?

Yes, if your employer has policies that allow it, but your employer is not required to “cash out” earned HWA paid leave.

Call the Employee Rights Attorneys at Herrmann Law Today

For more information, call the Employee Rights attorneys at Herrmann Law. If you think that your employer has violated your rights as an employee, call us. We are proven, experienced, employee-focused attorneys representing workers in New Mexico and across the United States in all types of workplace disputes. Use our Online Contact page or call us at (817) 479-9229. We are more than just a law firm for employees – we are an employee’s fiercest advocate, equipping employees with the legal representation needed to achieve the best result possible.