By Little v. West
Gov. Michelle Lujan Grisham signed bills into law from the 2019 legislative session that will impact private employers in New Mexico. Below is a summary of several bills that change the law applicable to private employers. Employers should consult with legal counsel and consider reviewing and updating employment policies, procedures and handbooks.
‘Right to work’
House Bill 85 rejects “right to work” as a matter of statewide policy and instead establishes that an employer or union in New Mexico can require membership in a union as a condition of employment. HB 85 also prohibits local governments in New Mexico from enacting “right to work” ordinances, invalidating the “right to work” ordinances several counties enacted.
Arrest/conviction history
Senate Bill 96 enacts a “ban the box” restriction, prohibiting private employers from asking about an applicant’s arrest or conviction history on a written or electronic application. SB 96 will permit employers to consider an applicant’s conviction record after review of the application and during discussion with the applicant. SB 96 also allows employers to notify the public or the applicant that an applicant can be disqualified for employment with the employer “in particular positions” under the employer’s policy if an applicant has “a certain criminal history.”
Medical marijuana
Senate Bill 406 makes it unlawful for an employer to discriminate against an applicant or employee for the use of medical marijuana pursuant to the New Mexico Compassionate Use Act. There is an exception if compliance would “cause the employer to lose a monetary or licensing-related benefit under federal law or regulations. …” The anti-discrimination provision also does not apply to “an employee whose employer deems that the employee works in a safety sensitive position.” SB 406 allows employers to prohibit, or discipline an employee for, “use of, or being impaired by, medical cannabis on the premises of the place of employment or during the hours of employment.”
Minimum wage
Two bills change the state’s wage laws. Senate Bill 437 increases the statewide minimum wage from the existing rate of $7.50 per hour to $9 per hour on Jan. 1, 2020, and incrementally increases the hourly wage on Jan. 1 of each following year, up to $12 per hour on Jan. 1, 2023.
For tipped employees who customarily and regularly receive more than $30 a month in tips, SB 437 permits employers to pay these tipped employees at a lower hourly rate, as long as the total received is at least the statewide minimum wage per hour when the wages and tips are added together. In addition, the lower hourly rate payable to tipped employees also will incrementally increase from the current rate of $2.13 per hour up to $3 per hour by 2023.
SB 437 also establishes a statewide minimum wage of $8.50 per hour for a student enrolled in secondary school working after school hours or when school is not in session, unless the student qualifies as a tipped employee, discussed above. Some local ordinances still require higher minimum wages than required by the state.
Finally, SB 85 mandates that domestic workers receive the same statewide wage protections as other employees.
Anti-discrimination expansion
Senate Bill 227 expands New Mexico’s anti-discrimination law to include sexual orientation and gender identity as protected classes when employers have at least four employees.
Sick leave for caregivers
Senate Bill 123 creates the Caregiver Leave Act, permitting an employee eligible under a private employer’s policies to use accrued sick leave to care for certain family members (including spouses or domestic partners or certain other specific family members by blood, marriage or legal adoption) in the same way an employee can use accrued sick leave for the employee. SB 123 also enacts anti-retaliation and anti-discrimination provisions to protect employees who use sick leave for this purpose.
Employers should watch for future Department of Workforce Solutions regulations that may create additional exemptions and obligations under the Caregiver Leave Act.
Senate Bill 123 does not require an employer to provide paid sick leave. SB 123 also does not regulate how an employer handles leave to which an employee is entitled under the federal Family Medical Leave Act.
Safe harbor for nurses
Senate Bill 82 creates the Safe Harbor for Nurses Act, protecting nurses from adverse action by a health care facility when, in the nurse’s good faith judgment, the nurse lacks the knowledge, skills or ability necessary to safely deliver nursing care, or the nurse questions the medical reasonableness of another health care provider’s order the nurse is required to execute.
SB 82 provides conditions under which a nurse may invoke safe harbor; requires a health care facility to develop procedures for a nurse to invoke safe harbor; establishes certain minimum requirements for the safe harbor process; and includes anti-retaliation and anti-discrimination provisions protecting nurses who make a good faith request for safe harbor.
Workplace smoke exposure
House Bill 256 expands workplace smoke exposure protections. The law addresses e-cigarettes, vape devices and other similar products intended for smoking tobacco and marijuana.
Public restrooms
Employers open to the public may be considered a “public accommodation.” House Bill 388 requires single-user toilet facilities in public accommodations in existence or constructed on or after July 1, 2019, to be made available to any person regardless of gender identity or sex, designated for single use, for family use or for assisted use, and identified with gender-neutral signage.
House Bill 205 requires public accommodations to provide a baby changing facility in restrooms under certain circumstances.
Republished with permission, this article first appeared in the Santa Fe New Mexican on June 1, 2019.
Little V. West is an attorney at Holland & Hart’s Santa Fe office. He counsels businesses on best practices to comply with labor and employment laws. West also guides clients through dispute resolution or litigation of employment disputes. He can be reached at LVWest@hollandhart.com or 505-988-4421. This article is for general informational purposes only.
