Mandatory Paid Time Off in Bernalillo County, New Mexico Ordinance

The Bernalillo County, New Mexico Commissioners passed the “Employee Wellness Act,” which, though formerly styled as a paid sick leave law, as amended requires covered employers to provide paid time off (PTO) that employees can use for any reason. This law was passed on August 20, 2019.

Covered Employers and Employees

The ordinance applies to employers that must apply for a county business registration with at least two employees and a physical premise in the county’s unincorporated limits. Additionally, a new local business with its principal office or place of business in the county’s unincorporated limits is exempt for the first 12 months of operation.

Effective Date

The enacted amendments generally change the law’s effective date from July 1, 2020, to January 1, 2020. However, this change did not revise the law’s operative date, i.e., when employers must provide, or allow employees to accrue, leave. The enactment date remains July 1, 2020.

Accrual of Paid Time Off & Carry Over

• Employees shall accrue a minimum of one (1) hour of earned paid time off for every 32 hours worked, provided that employers may choose a higher accrual rate or to provide for the accrual of all earned paid time off at the beginning of the year.
• The requirement to provide paid time off shall be enacted via three incremental increases of 16 hours per year over three years
• Effective July 1, 2020, employees shall not accrue more than 24 hours of earned paid time off in a year unless the employer’s policy provides for a higher limit on use or accrual. This may be increased to 28 hours as per a new bill.
• Effective July 1, 2021, employees shall not accrue more than 40 hours of earned paid time off in a year unless the employer’s policy provides for a higher limit on use or accrual. This may be increased to 44 hours as per a new amendment bill.
• Effective July 1, 2022, employees shall not accrue more than 56 hours of earned paid time off in a year unless the employer’s policy provides for a higher limit on use or accrual.
• Earned paid time off shall begin to accrue on the employee’s 90th day of employment, or on the effective date of this ordinance if an employee is already employed for at least 90 days on that date, or whichever is later.
• An employer may, but is not obligated to loan earned paid time off to an employee in advance of accrual or eligibility by such employee.
• Carry-over of earned paid time off – Unused accrued earned paid time off shall be carried over to the following year, but employees shall not carry over more than the total annual amount available to accrue unless the employer’s policy provides
  otherwise.

Transfer of Employee

If an employee is transferred but remains employed by the same employer, or if a successor employer replaces the original employer, or if an employee separates from employment but is rehired by the same employer within 12 months, the employer shall reinstate all previously accrued and unused earned paid time off to the employee, up to a maximum of 56 hours unless the employer chooses to provide more, or unless the employer previously chose to pay out the earned paid time off upon transfer or separation.

Use of Earned Paid Time Off (EPTO)

Employers must permit employees to use paid time off accrued for any reason. There is no cap on the number of hours an employee may use in a year.

Notice, Posting, and Recordkeeping

When employment begins, employers must provide notice to each employee of the following:

• Entitlement to EPTO, the amount of EPTO provided, and its terms of use;
• How and to whom employees submit EPTO requests or notification;
• A statement that retaliation for requesting or using EPTO is prohibited; and
• A statement explaining employees have the right to file a complaint with the county.

Employers may comply with this notice requirement by conspicuously displaying a poster at their place of business with the required information in both English and Spanish, though the county may establish additional requirements.

Employers with operations in the county’s unincorporated areas should monitor the county’s website for updates.