SENATE BILL 198

55th legislature - STATE OF NEW MEXICO - first session, 2021

INTRODUCED BY

Linda M. Lopez

 

 

 

 

 

AN ACT

RELATING TO EMPLOYMENT; ENACTING THE PAID SICK LEAVE ACT; REQUIRING ACCRUAL OF PAID SICK LEAVE FOR EMPLOYEES; PROVIDING REMEDIES FOR VIOLATIONS; REQUIRING RULEMAKING; ESTABLISHING BURDEN OF PROOF STANDARDS FOR RETALIATION CASES; DECLARING AN EMERGENCY.

 

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 Sick Leave Act".

         SECTION 2. [NEW MATERIAL] DEFINITIONS.--As used in the Paid Sick Leave Act:

                   A. "child" means an adopted child, a biological child, a foster child or a stepchild;

                   B. "division" means the labor relations division of the workforce solutions department;

                   C. "domestic partner" means an individual with whom another individual maintains a household and a mutual committed relationship, without a legally recognized marriage;

                   D. "employ" means to suffer or permit to work; the burden of proof shall be upon the person for whom the work is performed to show independent contractor status by clear and convincing evidence;

                   E. "employee" means an individual employed by an employer, including an individual employed on a part-time, seasonal or temporary basis, or an individual performing domestic service in a private home for remuneration;

                   F. "employer" means any individual, partnership, association, corporation, business trust, legal representative or organized group of persons employing one or more employees at any one time, acting directly or indirectly in the interest of an employer in relation to an employee, but does not include the United States; "employer" includes the state or any political subdivision of the state; "employer" includes a person providing remuneration for domestic service in a private home;

                   G. "family member" means an employee's spouse or domestic partner or a person related to an employee or an employee's spouse or domestic partner as a child or legal ward; an adoptive, biological or foster grandchild, grandparent or parent; a stepgrandchild, stepgrandparent or stepparent; or a sibling or stepsibling; "family member" also includes a spouse or domestic partner of a family member, an individual to whom the employee stands or stood in loco parentis or any other individual whose close association with the employee or employee's spouse or domestic partner is the equivalent of a family relationship;

                   H. "paid leave policy" means an employer policy that meets or exceeds the accrual requirements and allows for the same employee use of paid sick leave and under the same conditions as provided in the Paid Sick Leave Act;

                   I. "paid sick leave" means time that is compensated at the same hourly rate and with the same benefits, including health care benefits, as the employee normally earns during hours worked and is provided by an employer to an employee for the purposes described in the Paid Sick Leave Act;

                   J. "public health emergency" means a declaration or proclamation issued pursuant to federal, state or local law of an emergency related to a risk or threat to public health; and

                   K. "year" means a consecutive twelve-month period.

         SECTION 3. [NEW MATERIAL] EARNED PAID SICK LEAVE--USES AND ACCRUAL--MINIMUM RATE.--

                   A. An employer shall provide employees paid sick leave for:

                               (1) an employee's mental or physical illness, injury or health condition; medical diagnosis, care or treatment of a mental or physical illness, injury or health condition; or preventive medical care;

                               (2) an employee to care for a family member with a mental or physical illness, injury or health condition; to care for a family member who needs medical diagnosis, care or treatment of a mental or physical illness, injury or health condition; or to care for a family member who needs preventive medical care; or

                               (3) an absence necessary due to domestic abuse, sexual assault or stalking suffered by the employee or employee's family member; provided that the leave is for the employee to obtain medical or psychological treatment or other counseling, relocate, prepare for or participate in legal proceedings or obtain services or to assist the employee's family member with any of those activities.

                   B. Employees shall accrue a minimum of one hour of paid sick leave for every thirty hours worked; provided that employers may choose a higher accrual rate or provide for accrual of all earned paid sick leave at the beginning of a year.  

                   C. Employees shall not use or accrue more than fifty-six hours of earned paid sick leave in a year, unless the employer's paid sick leave policy provides for a higher limit on use or accrual. Paid sick leave shall begin to accrue on the date the employee commences work or the effective date of the Paid Sick Leave Act, whichever is later. An employer may loan paid sick leave to an employee in advance of accrual by such employee. Employees exempt from overtime requirements under federal and state law shall be assumed to work forty hours in each work week for purposes of paid sick leave accrual, unless their normal work week is less than forty hours. When an overtime-exempt employee's normal work week is less than forty hours, accrual of paid sick leave shall be based on the employee's normal amount of work week hours.

                   D. Beginning on the sixtieth day after the effective date of the Paid Sick Leave Act, an employee shall be entitled to use accrued paid sick leave.

                   E. An employer shall allow the use of paid sick leave for the purposes provided in Subsection A of this section upon the request of an employee or an individual acting on the employee's behalf. The request may be made orally, in writing, by electronic means or by any other means acceptable to the employer. When possible, the request shall include the expected duration of the absence. When the use of paid sick leave is foreseeable, such as a scheduled medical appointment or similar matter, the employee shall make a good faith effort to provide notice to the employer in advance of the use of the paid sick leave and shall make a reasonable effort to schedule the use of paid sick leave in a manner that does not unduly disrupt the operations of the employer. Advance notice shall not be required for paid sick leave due to an emergency, unexpected illness, domestic abuse, sexual assault or stalking.

                   F. An employer shall not require an employee to find a replacement worker as a condition of using paid sick leave.

                   G. An employer shall not require an employee to use other paid leave before the employee uses paid sick leave pursuant to the Paid Sick Leave Act.

                   H. An employer's failure to provide paid sick leave based on the employer's misclassification of the employee as an independent contractor is a violation of the Paid Sick Leave Act.

                   I. Unused earned paid sick leave shall be carried over to the following year, but employees shall not carry over more than fifty-six hours of paid sick leave in a year, unless the employer's paid sick leave policy provides for more hours to carry over. When an employee is transferred but remains employed by the same employer, when a successor employer replaces the original employer or when an employee separates from employment and is rehired by the same employer within twelve months, the employer shall reinstate all previously accrued and unused earned paid sick leave to the employee, up to a maximum of fifty-six hours, unless the employer chooses to provide more, or unless the employer previously chose to pay out the earned paid sick leave upon transfer or separation.

                   J. Documentation shall not be required to obtain the use of paid sick leave, except that when an employee uses three or more consecutive work days of paid sick leave, an employer may require the employee to provide reasonable documentation that the paid sick leave was used for a purpose permitted pursuant to this section. Documentation signed by a health care professional indicating that paid sick leave is necessary shall be considered reasonable. If an employer chooses to require documentation from a health care professional, the employer is responsible for reimbursing out-of-pocket medical expenses that the employee incurs in obtaining the documentation if the medical visit is not medically necessary and made solely to obtain documentation for the employer or if such costs are not covered by the employee's or family member's insurance plan. In cases of domestic abuse, sexual assault or stalking, an employee may choose to provide one of the following types of documentation, which shall be considered as reasonable documentation for paid sick leave: a police report, a court-issued document or a signed statement from a clergy member, attorney, advocate, the employee, a family member of the employee, a victims services organization or other person affirming that the paid sick leave was taken for one of the uses in Subsection A of this section. A signed statement pursuant to this subsection may be written in the employee's native language and shall not be required to be in a particular format or notarized. An employer shall not require that the documentation explain the nature of any medical condition or the details of the domestic abuse, sexual assault or stalking.

                   K. All information an employer obtains related to the employee's reasons for taking paid sick leave shall be treated as confidential and not be disclosed except with the permission of the employee or for the purpose of validating an insurance disability claim or as required by federal law, the Paid Sick Leave Act or a court order.

         SECTION 4. [NEW MATERIAL] SUPPLEMENTAL LEAVE DURING A PUBLIC HEALTH EMERGENCY.--

                   A. In addition to the accrued paid sick leave provided pursuant to Section 3 of the Paid Sick Leave Act, on the date a public health emergency is declared, an employer shall provide supplemental paid sick leave for absences due to the circumstances listed in Subsection E of this section. Such supplemental paid sick leave shall be provided in the following amounts at a minimum:

                               (1) eighty hours for an employee who normally works forty or more hours in a week; or

                               (2) the number of hours the employee works on average in a fourteen-day period for an employee who normally works fewer than forty hours in a week.

                   B. The supplemental paid sick leave provided pursuant to Subsection A of this section shall be the entirety of supplemental paid sick leave required under the Paid Sick Leave Act for a public health emergency regardless of whether the public health emergency is subsequently amended, extended or renewed.

                   C. If a public health emergency was declared before and remains in effect on the effective date of the Paid Sick Leave Act, supplemental paid sick leave under this section shall be provided to employees on the effective date of the Paid Sick Leave Act.

                   D. An employer may count an employee's unused accrued paid sick leave pursuant to Section 3 of the Paid Sick Leave Act toward the supplemental paid sick leave required in Subsection A of this section. An employee may use supplemental paid sick leave under this section until four weeks after the official termination of a public health emergency.

                   E. Supplemental paid sick leave pursuant to this section shall be available to an employee for absences due to:

                               (1) care, testing or treatment of the employee or a family member to whom the employee provides care as a consequence of being diagnosed with, experiencing symptoms of or exposure to a person or item with a communicable illness or transmittable condition that is related to a public health emergency;

                               (2) self-isolation by the employee or a family member to whom the employee provides care as a consequence of being diagnosed with, experiencing symptoms of or exposure to a person or item with a communicable illness or transmittable condition that is related to a public health emergency;

                               (3) the pursuit of preventive care for the employee or a family member to whom the employee provides care for a communicable illness that is related to a public health emergency;

                               (4) compliance with a determination by the employer or a local, state or federal public official or health authority having jurisdiction over the location of work for the employee or a family member to whom the employee provides care that:

                                         (a) the place of employment must be closed;

                                         (b) the individual's presence on the job or in the community would jeopardize the health of others due to exposure to a communicable illness or transmittable condition related to a public health emergency; or

                                         (c) the individual is exhibiting symptoms of a communicable illness or transmittable condition related to a public health emergency, regardless of whether the individual has been diagnosed with the communicable illness;

                               (5) care of a family member when that individual's:

                                         (a) care provider is unavailable due to a public health emergency; or

                                         (b) school or place of care has been physically closed due to a public health emergency, whether or not the school or place of care is providing instruction or services remotely; or

                               (6) an inability to work due to a health conditio