HOUSE BILL 38
55th legislature - STATE OF NEW MEXICO - first session, 2021
INTRODUCED BY
Christine Chandler and Patricia Roybal Caballero
and Linda Serrato
AN ACT
RELATING TO EMPLOYMENT; ENACTING THE PAID FAMILY AND MEDICAL LEAVE ACT; CREATING THE PAID FAMILY AND MEDICAL LEAVE TRUST FUND; PROVIDING FOR THE PAID FAMILY AND MEDICAL LEAVE PROGRAM TO PAY AN ELIGIBLE EMPLOYEE A PERCENTAGE OF THE EMPLOYEE'S SALARY TO ALLOW THE EMPLOYEE TO BOND WITH A NEW CHILD OR TO CARE FOR A FAMILY MEMBER; LIMITING THE TIME ALLOWED FOR PAID FAMILY AND MEDICAL LEAVE; EXCEPTING CERTAIN EMPLOYEES; PROVIDING FOR ADMINISTRATION OF THE PROGRAM BY THE WORKFORCE SOLUTIONS DEPARTMENT; ENACTING ADMINISTRATIVE PENALTIES; CREATING A TEMPORARY ADVISORY COMMITTEE.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
SECTION 1. [NEW MATERIAL] SHORT TITLE.--This act may be cited as the "Paid Family and Medical Leave Act".
SECTION 2. [NEW MATERIAL] DEFINITIONS.--As used in the Paid Family and Medical Leave Act:
A. "child" means a biological, adopted or foster child, a stepchild, a legal ward or a child of a person standing in loco parentis, who is:
(1) under eighteen years of age; or
(2) eighteen years of age or older and incapable of self-care because of mental or physical disability;
B. "claim for leave" means an application for leave that an employee makes to the department pursuant to the Paid Family and Medical Leave Act in accordance with department rules;
C. "department" means the workforce solutions department, the secretary or an employee of the department exercising authority lawfully delegated to that employee by the secretary;
D. "domestic partner" means a person with whom another person maintains a household and a mutual committed relationship, without a legally recognized marriage;
E. "employee" means a person working within the state who performs a service for wages or other remuneration under a contract of hire, written or oral, express or implied, and includes a person employed by the state or a political subdivision of the state;
F. "employer" means a person that has one or more employees within the state and includes an agent of an employer and the state or a political subdivision of the state;
G. "family leave" means paid leave for which an employee applies pursuant to the Paid Family and Medical Leave Act and that is granted to the employee to allow the employee to bond with a child of the employee within twelve months of the birth or adoption of a child or placement of a foster child with the employee or to care for a family member if the family member has a serious health condition;
H. "family member" means a person who is:
(1) regardless of age, a biological, adopted or foster child, stepchild or legal ward, a child of a domestic partner, a child to whom an employee stands in loco parentis or a person to whom the covered individual stood in loco parentis when the person was a minor;
(2) a biological, adoptive or foster parent, stepparent or legal guardian of an employee or the employee's spouse or domestic partner or a person who stood in loco parentis when the employee or the employee's spouse or domestic partner was a minor;
(3) a person to whom an employee is legally married under the laws of any state or a domestic partner of the employee;
(4) a grandparent, great-grandparent, grandchild or sibling, whether a biological, foster, adoptive or step relationship, of an employee or an employee's spouse or domestic partner; or
(5) any other individual related by blood or affinity whose close association with the employee or employee's spouse or domestic partner is the equivalent of a family relationship;
I. "fund" means the paid family and medical leave trust fund;
J. "health care provider" means an individual licensed or certified to provide health care in the ordinary course of business;
K. "leave" means family leave or medical leave for which an employee applies pursuant to the Paid Family and Medical Leave Act;
L. "leave compensation" means income that the department pays from the fund to an employee for family or medical leave;
M. "medical leave" means paid leave for which an employee applies pursuant to the Paid Family and Medical Leave Act to allow the employee to provide care for the employee's own serious health condition or to care for a family member with a serious health condition;
N. "secretary" means the secretary of workforce solutions;
O. "serious health condition" means an illness, injury, impairment or physical or mental condition that involves:
(1) inpatient care in a hospital, hospice or residential medical facility; or
(2) continuing treatment by a health care provider; and
P. "spouse" means a partner to a lawful marriage.
SECTION 3. [NEW MATERIAL] PAID FAMILY AND MEDICAL LEAVE TRUST FUND--CREATION.--
A. The "paid family and medical leave trust fund" is created as a nonreverting fund in the state treasury and shall be administered by the department. The fund shall be held in trust for the benefit of the employees who paid into the fund and shall consist of all revenue collected and attributable to the Paid Family and Medical Leave Act. Money in the fund shall be invested by the state investment officer. Income from investment of the fund shall be credited to the fund.
B. Money in the fund is appropriated to the department to distribute leave compensation pursuant to the Paid Family and Medical Leave Act and to cover the costs of administering the paid family and medical leave program pursuant to that act.
C. Money shall be disbursed from the fund only on warrant issued by the department of finance and administration pursuant to vouchers signed by the secretary or the secretary's authorized representative. Any unexpended or unencumbered balance remaining at the end of a fiscal year shall not revert to the general fund.
D. The secretary shall ensure and maintain the self-sufficiency and solvency of the fund by performing an annual financial analysis and reporting the results and recommendations based on the analysis to the appropriate legislative body for adjustment of the formula used to determine employer and employee contributions to the fund.
SECTION 4. [NEW MATERIAL] APPLICABILITY--CONTRIBUTIONS TO FUND--REMITTANCE OF CONTRIBUTIONS--EXEMPTION FOR PRIVATELY RUN PROGRAMS--REQUIREMENTS OF PRIVATELY RUN PROGRAMS.--
A. The Paid Family and Medical Leave Act applies to:
(1) all public and private employees who are subject to state jurisdiction, except those employees who are employed by the United States;
(2) the employers of employees as described in Paragraph (1) of this subsection, whether or not the employer is physically located in the state; and
(3) self-employed individuals subject to state jurisdiction who opt into the program.
B. Beginning July 1, 2023 and for each calendar quarter thereafter, there is assessed against each participating employee one-half percent of the employee's earnings to fund leave compensation payments. An employee's contribution to the fund shall not be deducted from the employee's leave compensation.
C. Beginning July 1, 2023 and for each calendar quarter thereafter, there is assessed against each employer with participating employees an amount equal to four-tenths percent of each participating employee's earnings to fund administrative costs.
D. Beginning July 1, 2023 and for each calendar quarter thereafter, there is assessed against each self-employed individual as described in Paragraph (3) of Subsection A of this section nine-tenths percent of the individual's net annual earnings as designated by the self-employed individual.
E. The contributions of employees and employers shall be remitted by the employer following the end of each quarter for which the contributions are deducted and on a date determined by the secretary.
F. The contributions of self-employed individuals shall be remitted by the individual following each end of the quarter for which the contributions are deducted and on a date determined by the secretary. A self-employed individual shall not be required to make contributions from leave compensation.
G. An employer that has adopted and operates a paid family and medical leave plan or program for the benefit of its employees that provides leave and leave compensation equal to or greater than the leave and leave compensation offered under the Paid Family and Medical Leave Act may apply for a waiver to exempt the employer and its employees from making required contributions to the fund. The employer shall apply and provide supporting documentation to the department for exemption each calendar year.
H. An employer granted a waiver pursuant to Subsection G of this section and the employer's employees shall have the same rights and protections enjoyed by employers and employees covered under the Paid Family and Medical Leave Act, including the right to appeal to the department.
I. An employer granted a waiver pursuant to Subsection G of this section shall notify all employees covered by the employer's paid leave program that:
(1) the employee is covered by a privately run leave program rather than a public plan;
(2) employees may apply to the employer for leave;
(3) employers must provide leave and leave compensation equal to or greater than that granted to employees under the Paid Family and Medical Leave Act; and
(4) employees may appeal to the department if any right granted under the Paid Family and Medical Leave Act is violated.
J. A paid family and medical leave plan that is privately operated, as described in Subsection G of this section, shall not:
(1) require an employee to pay more for private coverage than the employee would pay through contribution to the fund as described in Subsection B of this section; or
(2) impose additional restrictions or conditions on the process of applying for or receiving leave or leave compensation beyond those explicitly authorized by state law.
K. The department shall withdraw approval of a waiver for a privately operated paid leave plan or program that violates the provisions of Subsections G through J of this section.
SECTION 5. [NEW MATERIAL] ELIGIBILITY--LEAVE COMPENSATION CALCULATION--LEAVE DURATION--DOCUMENTATION REQUIRED--NOTICE OF DETERMINATION.--
A. Beginning January 1, 2024, an employer shall allow an eligible employee to take family leave or medical leave after the employee, in accordance with the provisions of the Paid Family and Medical Leave Act and department rules, has:
(1) filed a claim for leave approved by the department;
(2) certified that the employee will not obtain new employment or enter into any new independent contractor agreements during the time the employee receives leave compensation pursuant to the Paid Family and Medical Leave Act; and
(3) contributed to the fund for at least six months during any employment in the twelve-month period prior to submitting an application, not including contributions made for employment that the employee will continue during the leave.
B. Beginning January 1, 2024, the department shall provide leave compensation to an eligible self-employed individual after the self-employed individual, in accordance with the provisions of the Paid Family and Medical Leave Act and department rules, has:
(1) filed a claim for leave approved by the department;
(2) certified that the self-employed individual