Analysis

Synopsis:

 House Bill 20 (HB 20) creates the Healthy Workplaces Act to direct employers to provide earned sick leave and details the requirements and enforcement.

Analysis:

 House Bill 20 (HB 20) creates the Healthy Workplaces Act to direct employers to provide earned sick leave and detail the requirements and enforcement.

Section 1 of HB 20 names this act the Healthy Workplaces Act (Act).

Section 2 details the purpose of the Act to:
Regulate employee benefits regarding earned sick leave within New Mexico; 
Require employers to provide a minimum amount of earned sick leave for employees; 
Reduce public and private health care costs and promote preventive health services by enabling employees to seek early and routine medical care for themselves and their family members; 
Protect the public's health in New Mexico by reducing the risk of contagion; 
Protect employees from losing their jobs or facing workplace discipline when they use earned sick leave; 
Benefit businesses by reducing worker turnover and decreasing the incidence of employees coming to work with illnesses and health conditions that reduce their productivity; 
Safeguard the public welfare, health, safety and prosperity of the people of New Mexico; and
Accomplish the purposes described in this section in a manner that is feasible for employers. 

Section 3 provides definitions as used in the Act.

Section 4 details the use and accrual of earned sick leave as follows:
A. Employees of an employer with fewer than ten employees shall accrue a minimum of one hour of earned sick leave for every 30 hours worked. Such employees shall not be entitled to use more than 40 hours of earned sick leave per 12-month period, unless the employer selects a higher limit. 
B. Employees of an employer with ten or more employees shall accrue a minimum of one hour of earned sick leave for every 30 hours worked. Such employees shall not be entitled to use more than 64 hours of earned sick leave per 12-month period, unless the employer selects a higher limit. 
C. In determining the number of employees working for an employer during a given week, all employees performing work for compensation on a full-time, part-time or temporary basis shall be counted. In situations in which the number of employees who work for an employer for compensation per week fluctuates above and below ten employees per week over the course of the 12-month period, an employer is required to provide earned sick leave pursuant to Subsection B of this section if the employer maintained ten or more employees on the payroll for some portion of a day in each of 20 different calendar weeks, whether or not the weeks were consecutive, in either the current or the preceding 12-month period. 
D. All employees shall accrue earned sick leave as follows:   
	(1) earned sick leave as provided in the Act shall begin to accrue upon commencement of the employee's employment; 
	(2) employees shall be entitled to use accrued earned sick leave beginning on the thirtieth calendar day following commencement of their employment. After the thirtieth calendar day of employment, employees may use earned sick leave as it is accrued, subject to the limitations set forth in Subsections A and B of this section; 
	(3) employees who are exempt from overtime requirements pursuant to the federal Fair Labor Standards Act of 1938, 29 U.S.C. Section 213(a)(1), will be assumed to work 40 hours in each work week for the purposes of earned sick leave accrual unless their normal work week is less than 40 hours, in which case earned sick leave accrues based on their normal work week; 			(4) accrued unused earned sick leave shall carry over from year to year, but an employer is not required to permit an employee to use more than the maximum time provided for in Subsections A and B of this section in a twelve-month period; 
	(5) nothing in this section shall be construed as requiring financial or other reimbursement to an employee from an employer upon the employee's termination, resignation, retirement or other separation from employment for accrued earned sick leave that has not been used; 
	(6) if an employee is transferred to a separate division, entity or location but remains employed by the same employer, the employee is entitled to all earned sick leave accrued at the prior division, entity or location and is entitled to use all earned sick leave as provided in this section. When there is a separation from employment, and the employee is rehired within 12 months of separation by the same employer, previously accrued earned sick leave that has not been used shall be reinstated. Further, the employee shall be entitled to use accrued earned sick leave and accrue additional earned sick leave upon re-commencement of employment; and 	
       (7) when a different employer succeeds or takes the place of an existing employer, all employees of the original employer who remain employed by the successor employer are entitled to all earned sick leave accrued when employed by the original employer and are entitled to use all earned sick leave previously accrued. 
E. An employee may use earned sick leave to care for employee or employee’s family members for mental or physical illness, injury or health condition; medical diagnosis, care or treatment of a mental or physical illness; or  preventive medical care.  Earned sick leave also may used for meetings at the employee's child's school or place of care related to the child's health or disability. Earned sick leave may be used for closure of the employee's place of business by order of a public official due to a public health emergency; for an employee's need to care for a child whose school or place of care has been closed by order of a public official due to a public health emergency; or when it has been determined by the health authorities having jurisdiction or by a health care professional that the employee's or employee's family member's presence in the community would jeopardize the health of others because of exposure to a communicable disease. An employee may use earned sick leave for absence necessary due to domestic abuse, sexual assault or stalking suffered by the employee or a family member of the employee. 
F. Earned sick leave shall be provided upon the oral or written request of an employee. When possible, the request shall include the expected duration of the sick leave absence.
G. When the use of earned sick leave is foreseeable, the employee shall make a good faith effort to provide oral or written notice of the need for such sick leave to the employer in advance and shall make a reasonable effort to schedule the use of earned sick leave in a manner that does not unduly disrupt the operations of the employer. When the use of earned sick leave is not foreseeable, the employee shall notify the employer orally or in writing as soon as practicable. 
H. An employer may not require, as a condition of an employee's taking earned sick leave, that the employee search for or find a replacement worker to cover the hours during which the employee is using earned sick leave.
I. Earned sick leave may be used in the smaller of hourly increments or the smallest increment that the employer's payroll system uses to account for absences or use of other time. 
J. An employer shall not require an employee to use other paid leave before the employee uses sick leave pursuant to the Healthy Workplaces Act.


Section 5 addresses instances where an employer’s policy provides a more generous sick leave and that may be used for the same purposes and under the same conditions as earned sick leave under that act is not required to provide additional earned sick leave.

Section 6 specifies that documentation shall not be required for sick leave, except an employer may require reasonable documentation that sick leave has been used for a covered purpose if the employee uses three or more consecutive days of sick leave. In addition, Section 6 provides that documentation provided by health care professionals or, in some instances, by other professions shall be considered reasonable. An employer may not require the documentation to explain the nature of any medical condition. If an employer chooses to require documentation for the purpose of the use of earned sick leave, the employer shall pay the cost of any verification by a health care professional that is not covered by insurance or other benefit plan. An employee shall provide documentation upon request to the employer in a timely manner. The employer shall not delay the commencement of earned sick leave on the basis that the employer has not yet received documentation. All information an employer obtains related to an employee's reasons for taking sick leave shall be treated as confidential and not disclosed except with the permission of the employee or as necessary for validation purposes for insurance disability claims, accommodations consistent with the federal Americans with Disabilities Act of 1990, as required by the Healthy Workplaces Act or by court order. 

Section 7 specifies employer notice and posting requirements containing details about earned sick leave in languages as detailed in this section. It also provides that employers shall display a  poster with the information in a conspicuous and accessible place where employees are employed. The secretary shall create and make available to employers notices and posters in English, Spanish and any other languages deemed appropriate that contain the information required for employers' use in complying with the provisions of this section. 

Section 8 specifies that an employer shall retain documentation of hours worked by employees and earned sick leave taken by employees.
 
Section 9 prohibits retaliation against an employee exercising a right granted pursuant to the Act. An employer shall not attempt to require an employee to sign a contract or other agreement that would limit or prevent the employee from asserting rights provided for in the Healthy Workplaces Act. An employer shall not count use of sick leave in a way that will lead to discipline, discharge, demotion, non-promotion, less favorable scheduling, reduction of hours, suspension or any other adverse action. 

Section 10 authorizes the secretary to coordinate the implementation and enforcement the Act and provides specific directions for the secretary, including confidentiality of any complainant. Section 10 specifies that a violation of any of the provisions of the Act is a misdemeanor and specifies punishment, as well as instructions for pursuing action in the district court of the county in which the employer that has failed to comply with the Act resides or has a principal office or place of business, for the purpose of prosecuting violations. The district attorney for the district in which any violation occurs shall aid and assist the secretary in the prosecution. In addition to penalties provided pursuant to this section, an employer that violates a provision of the Act shall be liable to the employees affected in the amount of their unpaid or underpaid sick leave plus interest, in an additional amount equal to twice the unpaid or underpaid sick leave and for any other actual damages. For each instance of sick leave requested by an employee but unlawfully denied by the employer and not taken by the employee or unlawfully conditioned on searching for or finding a replacement worker, the employer shall be liable to the employees affected for actual damages or five hundred dollars ($500), whichever is greater. An action to recover such liability may be maintained in any court of competent jurisdiction by any one or more employees for and on behalf of the employee or employees and for other employees similarly situated, or such employee or employees may designate an agent or representative to maintain such action on behalf of all employees similarly situated. Such an action must be filed within three years from the date the last alleged violation occurred. Such an action may encompass all violations that occurred as part of a continuing course of conduct regardless of the date on which they occurred. The court in any action brought under Subsection G of this section shall, in addition to any judgment awarded to a prevailing employee, allow costs of the action and reasonable attorney fees to be paid by the employer. In any proceedings brought pursuant to the provisions of this section, the employee shall not be required to pay any filing fee or other court costs necessarily incurred in such proceedings. In addition to any remedy or penalty provided pursuant to the Healthy Workplaces Act, a court may order appropriate injunctive relief, including requiring an employer to post in the place of business a notice describing violations by the employer as found by the court or a copy of a cease and desist order applicable to the employer. 

Section 11 addresses other legal requirements.

Section 12 addresses severability. 

Section 13 states the effective date of the provisions of this Act is July 1, 2021.

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