On June 21, 2022, New Mexico’s Department of Workforce Solutions (DWS) published final regulations implementing the Healthy Workplaces Act (HWA), which will take effect throughout most parts1 of the “Land of Enchantment” on July 1, 2022. The HWA will allow all private-sector employees to accrue paid leave that they can use for sick time, safe time, or other reasons for themselves or to care for or assist a broad list of family members. Although the final regulations do not summarize the public comments DWS received and its responses to the comments, employers should not be too surprised with some positions DWS takes in the regulations because FAQs and other guidance documents DWS had published on its HWA page, and updated semi-regularly, did, in some respects, forecast its position. In this article we will not go over every rule or piece of guidance DWS issued, but we will highlight and discuss the key items that could have a more dramatic effect on employers’ compliance efforts.
No Cap on Accrual, But Employers Can Cap Carryover: The HWA is silent concerning whether employers can cap accrual annually or overall. Per the DWS FAQs, although employers can cap the annual use of HWA leave to 64 hours per year, they “can never cap an employee’s PSL accrual,” and “it is illegal to cap the number of hours an employee can accrue” (emphasis in original). As to why there is no accrual cap, DWS says, “[t]hat is how the Act is written. To resolve this discrepancy, the Legislature...
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