New Mexico — Leave Laws

New Mexico requires all private employers, regardless of size, to provide paid sick leave under the Healthy Workplaces Act, effective July 1, 2022. The Act applies to employees performing work in New Mexico, including full-time, part-time, seasonal, and temporary employees in the private sector.

Scope of coverage: private sector only. The Healthy Workplaces Act expressly does not cover employees of the United States, state or local governmental entities, or public schools. "Employer" is defined to exclude the United States, the state of New Mexico or its political subdivisions (such as counties, municipalities, and school districts), as well as any agencies or instrumentalities of these governmental entities (N.M. Stat. Ann. § 50-17-2(A)). Employees of public schools are likewise not covered, and separate leave policies or collective bargaining agreements may apply for these groups. Additionally, individuals subject to the federal Railway Labor Act are excluded from coverage.

The Labor Relations Division of the New Mexico Department of Workforce Solutions administers and enforces the Act for the private sector. Practitioners should not apply HWA requirements to public employers, agencies, or educational institutions—refer to relevant state personnel rules or local policies for those employees.

Source: N.M. Stat. Ann. §§ 50-17-1 to 50-17-12

Under the Healthy Workplaces Act, employees accrue a minimum of one hour of earned sick leave for every 30 hours worked. Employers may choose a higher accrual rate. As an alternative to accrual, employers may frontload the full 64 hours of earned sick leave at the start of each year (or a pro rata portion for employees hired mid-year). Overtime hours count toward the accrual calculation at the same one-hour-per-30-hours rate unless the employer has elected a higher accrual rate.

Source: N.M. Stat. Ann. § 50-17-3(A) & 11.1.6.8(B) NMAC

New Mexico's Healthy Workplaces Act caps the use of paid sick leave at 64 hours per 12-month period but does not cap accrual. An employee who works more than 1,920 hours in a year (30 hours × 64) will accrue more than 64 hours, and the excess accrual carries forward. Employers may choose one of four methods for defining the 12-month period: (a) a calendar year; (b) any fixed 12-month leave year, such as a fiscal year or the employee's anniversary date; (c) the 12-month period measured forward from the date the employee first uses earned sick leave; or (d) a rolling 12-month period measured backward from the date the employee uses any earned sick leave.

Carryover. Under N.M. Stat. Ann. § 50-17-3(B)(5), "accrued unused earned sick leave shall carry over from year to year." The statute does not specify a carryover cap. The Labor Relations Division has clarified in regulation that employers are not required to permit more than 64 hours of unused earned sick leave to carry over year-to-year. This means an employee with, for example, 90 unused hours at year-end can be capped at carrying over 64 hours into the new year, though the employer may voluntarily permit carryover beyond 64 hours.

Interaction with frontloading. If an employer frontloads 64 hours at the start of the year, and an employee has 64 hours of unused leave carried over, the employee's balance can be 128 hours (64 carryover + 64 frontload), even though the employer can still limit usage to 64 hours during that 12-month period. Employers who frontload must still permit carryover; frontloading does not eliminate the carryover obligation. An employee who works more than 1,920 hours in a year is entitled to accrue more than the frontloaded 64 hours, and the employer may not recoup frontloaded leave that exceeds hours actually worked.

No payout at separation. Employers are not required to pay employees for accrued unused sick leave upon termination, resignation, retirement, or other separation from employment. However, if an employer voluntarily pays out unused leave at separation, the paid-out leave is deemed "used" and does not need to be reinstated if the employee is rehired within 12 months.

Source: N.M. Stat. Ann. § 50-17-3 Source: 11.1.6.8(K)–(L) NMAC

Under the Healthy Workplaces Act (HWA), covered employees in New Mexico may use accrued earned sick leave for several enumerated purposes:

Permitted Reasons for Use. Under N.M. Stat. Ann. § 50-17-2(D), earned sick leave may be used for:

• The employee's own illness, injury, or health condition, including preventive care, diagnosis, treatment, or recovery.
• Care for a "family member" with an illness, injury, or health condition, including preventive care, diagnosis, treatment, or recovery.
• Absence due to domestic abuse, sexual assault, or stalking of either the employee or a family member, when leave is needed for medical or psychological care, relocation, legal services, or preparation for related court proceedings.
• Meetings at the employee's child's school or place of care related to the child's health or disability.

Public Health Emergencies. The HWA does not explicitly list declared public health emergencies as a standalone permitted category, but the statute does allow use for diagnosis, care, treatment, and preventive care, which would cover many needs arising during such emergencies if they relate directly to the reasons set out above.

Definition of "Family Member." The statute defines "family member" broadly in N.M. Stat. Ann. § 50-17-2(G) to include:

• A biological, adopted, or foster child, stepchild, legal ward, or a child for whom the employee stands in loco parentis (regardless of age).
• A biological, adopted, or foster parent, stepparent, or legal guardian (of the employee or the employee’s spouse or domestic partner).
• The employee’s spouse or domestic partner.
• A grandparent, grandchild, or sibling (of the employee or their spouse/domestic partner).
• Any individual whose close association with the employee is the equivalent of a family relationship.

The law thus sweeps in both formally recognized and functional family relationships for eligibility to use sick leave.

Source: N.M. Stat. Ann. § 50-17-2

Notice requirements for sick leave use.

Under New Mexico's Healthy Workplaces Act (HWA), employees are required to give notice to their employer before using earned sick leave "as soon as practicable." The statute itself does not distinguish between foreseeable and unforeseeable needs for leave in the notice standard, but agency regulations provide additional structure.

Foreseeable leave.

• If the need to use earned sick leave is foreseeable (for example, a scheduled doctor’s appointment), the employee must make a reasonable effort to provide advance notice and to schedule leave in a way that does not unduly disrupt the employer’s business operations. The regulation (11.1.6.10(A) NMAC) defines this as giving notice orally, in writing, electronically, or by other means acceptable to the employer—as early as practicable under the circumstances.

Unforeseeable leave.

• If the need for sick leave is not foreseeable (such as sudden illness or emergency), notice is required "as soon as practicable." This means as soon as the employee is able to provide notice, taking into account their circumstances, and in the manner usually used for such notifications at that workplace (oral, written, electronic, etc.).

No stricter requirements permitted.

• Employers may not require more notice than is provided in the statute or regulation, nor may they require documentation for sick leave absences of less than two consecutive workdays (see 11.1.6.10(B) NMAC for documentation rules).

Summary.

• For foreseeable sick leave under the HWA: reasonable advance notice, with an effort to avoid business disruption.
• For unforeseeable sick leave: notice as soon as practicable by ordinary means.
• The employer cannot impose additional or more onerous notice requirements beyond those set by law and regulation.

Source: N.M. Stat. Ann. § 50-17-5 Source: 11.1.6.10(A)-(C) NMAC

Under New Mexico's Healthy Workplaces Act (HWA), employers may only require documentation for sick leave absences when an employee uses two or more consecutive workdays of earned sick leave. For absences of a single workday, an employer cannot require documentation, regardless of the underlying reason for the leave.

Types of permissible documentation:

• For illness or preventive care: a written statement from a health care professional stating the amount of leave needed and that the leave was medically necessary.
• For leave related to domestic abuse, sexual assault, or stalking: a police report, court-issued document, or a signed statement from a victim services organization, attorney, clergy, advocate, family member, or the employee, attesting that the leave was taken for one of these covered reasons.

These statements can be in any format, in the employee’s preferred language, and cannot require details about the specific medical condition or incident. Employers may not require notarization or overly invasive information.

Timing for providing documentation: The Act and implementing regulations specify that if documentation is requested, the employee must provide it within 14 days of returning to work (11.1.6.8(M) NMAC). Employers may not delay or deny the use of earned sick leave while waiting for documentation. Employees must be given this timeframe regardless of the leave’s duration beyond the qualifying two-consecutive workdays threshold.

Summary:

• Documentation can only be required for absences of two or more consecutive workdays.
• Acceptable documentation is strictly defined, and must not intrude on medical or personal privacy beyond the statute.
• Employees have 14 days after returning to work to provide documentation.

Source: N.M. Stat. Ann. § 50-17-5 Source: 11.1.6.8(M) NMAC

If an employee separates from employment, and the same employer rehires the employee within 12 months of the separation, New Mexico’s Healthy Workplaces Act (HWA) requires the employer to reinstate any previously accrued and unused earned sick leave held by that employee at the time of separation. This requirement applies regardless of the reason for separation (including voluntary quit, discharge, or layoff). The reinstatement obligation is set out explicitly in N.M. Stat. Ann. § 50-17-3(B)(5), in place since July 1, 2022.

DWS FAQ clarification on payout offset: The New Mexico Department of Workforce Solutions (DWS) provides additional clarification in its official FAQ: if an employer pays out accrued, unused sick leave at the time of separation, that leave is considered "used" for HWA purposes. Therefore, any sick leave balance paid out at separation does not have to be reinstated if the employee is rehired within 12 months. This FAQ-based rule is not stated explicitly in the statutory text, but it is authoritative agency interpretation and should be followed in practice.

Statutory silences remain:

• The statute does not address whether a new 90-day waiting period for leave use applies after rehire, nor does it specify interaction with annual accrual or usage caps when reinstating leave.
• No regulatory or agency guidance as of June 2024 addresses these ancillary matters beyond the payout offset clarification.

Summary: Employers must restore the sick leave balance an employee had at separation if rehired within 12 months, unless that leave was paid out at separation, in which case only any unpaid, accrued balance must be reinstated. Statutory and regulatory silence remains on waiting periods and usage limits post-rehire.

Source: N.M. Stat. Ann. § 50-17-3(B)(5) Source: NM Dept. of Workforce Solutions Healthy Workplaces Act FAQ