COVID-19 Response Plans and the New Mexico Caregiver Leave Act

As part of their COVID-19 response plans, employers with employees in New Mexico should review the New Mexico Caregiver Leave Act (the “NMCLA”). NMSA  §§ 50-16-1-4 (2019). The NMCLA applies to employers who employ one or more employees and who offer sick leave to eligible employees, but does not require employers to provide sick leave.  However, if an employer does provide sick leave for an eligible employee’s own illness or injury or to receive health care, it must allow employees to use accrued sick leave to care for their family members on the same terms and procedures as for eligible employees.  "Family member" means an individual who is the spouse or domestic partner of or is by blood, marriage or legal adoption a parent, grandparent, great-grandparent, child, foster child, grandchild, great-grandchild, brother, sister, niece, nephew, aunt or uncle of an eligible employee. Employers are prohibited from retaliating against any employee who requests or uses caregiver leave, including citing the employee’s use of caregiver leave as a factor in their performance evaluation, or who files a complaint for violation of the NMCLA, cooperates in any investigation of alleged violations, or opposes any policy or practice established pursuant to the NMCLA. Covered sick leave does not include any leave to which an employee is entitled under the Family and Medical Leave Act of 1993, regardless of whether the employee uses sick leave during that time. The Act includes specific limited exemptions arising under the Railway Labor Act, Railroad Unemployment Insurance Act, the Federal Employers’ Liability Act, or comparable federal laws, collective bargaining agreements or bargaining rights, and any exceptions included in the regulations governing the Act. 

Covered New Mexico employers should review their COVID-19 response plans now in order to ensure their compliance with the NMCLA.