N.M. Admin. Code § 11.1.6.8

Current through Register Vol. 35, No. 19, October 8, 2024

Section 11.1.6.8 - ACCRUAL AND USAGE

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.

N.M. Admin. Code § 11.1.6.8

Adopted by New Mexico Register, Volume XXXIII, Issue 12, June 21, 2022, eff. 7/1/2022