New N.M. Legislation Prohibiting Discrimination Due to Pregnancy, Childbirth, or Related Condition and Barring NDAs in Private Employment Settlements

Employers should take note of new legislation signed by New Mexico Governor Michelle Lujan Grisham the first week of March affecting their employment relationships. First, the Governor signed legislation amending the New Mexico Human Rights Act to specifically include protections for pregnancy, childbirth, or condition related to pregnancy or childbirth. Of importance to employers, the revised Act includes new definitions for “reasonable accommodation” and “undue hardship” relating to accommodation which may assist employers with the interactive process. The amendments also make it clear that it is an unlawful discriminatory practice under the Act for any employer to: refuse or fail to provide reasonable accommodation for an employee or job applicant with a need arising from pregnancy, childbirth, or condition related to pregnancy or childbirth; or require an employee with a need arising therefrom to take paid or unpaid leave if another reasonable accommodation can be provided, unless the employee voluntarily requests to be placed on leave or is placed on leave pursuant to federal law. The amendments to the Act are effective May 20, 2020.

The Governor also signed legislation that prohibits a private employer, as a term of employment, from requiring an employee to sign a nondisclosure provision of a settlement agreement relating to a claim of sexual harassment, discrimination, or retaliation in the workplace. The law further prohibits settlement agreement provisions that prevent an employee from disclosing such claims occurring in the workplace or at a work-related event coordinated by or through the employer. Confidentiality provisions are
permitted if they are limited to the monetary amount of the settlement or, at the employee’s request, prohibit the disclosure of facts that could lead to the employee’s identification. Upon the sole request of an employee, a confidentiality provision also may be included that prevents the disclosure of factual information related to the underlying sexual harassment, discrimination, or retaliation claim. Disclosure of information subject to a confidentiality provision is not prohibited if disclosure is required in a
judicial, administrative or other governmental proceeding pursuant to a valid subpoena or other applicable order. This new law will be applied to agreements between a private employer and an employee or former employee entered into on or after May 20, 2020.

Employers should review their policies and procedures now in order to prepare for their timely compliance with this new legislation.