HOUSE BILL 86

53rd legislature - STATE OF NEW MEXICO - first session, 2017

INTRODUCED BY

Deborah A. Armstrong and Michael Padilla

FOR THE LEGISLATIVE HEALTH AND HUMAN SERVICES COMMITTEE

AN ACT

RELATING TO EMPLOYMENT; ENACTING THE CAREGIVER LEAVE ACT TO PROVIDE EMPLOYEES OF PRIVATE ENTITIES WHO HAVE ACCRUED PAID SICK LEAVE WITH THE OPPORTUNITY TO USE SICK LEAVE FOR FAMILY CAREGIVING; ENACTING THE PUBLIC EMPLOYEE CAREGIVER LEAVE ACT TO PROVIDE PUBLIC EMPLOYEES THE RIGHT TO USE ACCRUED SICK LEAVE FOR FAMILY CAREGIVING.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:

     SECTION 1. [NEW MATERIAL] SHORT TITLE.--Sections 1 through 3 of this act may be cited as the "Caregiver Leave Act".

     SECTION 2. [NEW MATERIAL] DEFINITIONS.--As used in the Caregiver Leave Act:

          A. "eligible employee" means an individual who is in the employ of an employer and who, in accordance with the employer's policies, is eligible to accrue sick leave;

          B. "employer" means a person that employs one or more employees and that offers eligible employees sick leave;

          C. "family member" means an individual who is related within a third degree of consanguity or affinity to an eligible employee; and

          D. "sick leave" means a leave of absence from employment for which an employer pays an eligible employee due to illness or injury or to receive care from a licensed or certified health professional. "Sick leave" does not include leave to which an employee is entitled under the federal Family and Medical Leave Act of 1993, regardless of whether the employee uses sick leave during that leave.

     SECTION 3. [NEW MATERIAL] ACCUMULATED SICK LEAVE--APPLICATION TO FAMILY CAREGIVING.--

          A. An employer that provides eligible employees with sick leave for an eligible employee's own illness or injury or to receive health care shall permit its eligible employees to use accrued sick leave to care for their family members in accordance with the same terms and procedures that the employer imposes for any other use of sick leave by eligible employees.

          B. If an eligible employee requests or uses caregiver leave in accordance with the employer's general sick leave policy, files a complaint with the workforce solutions department for violation of the Caregiver Leave Act, cooperates in an investigation or prosecution of an alleged violation of the Caregiver Leave Act or opposes any policy, practice or act that is prohibited by the Caregiver Leave Act, the eligible employee's employer shall not:

                (1) discharge or threaten to discharge the eligible employee;

                (2) demote the eligible employee;

                (3) suspend the eligible employee; or

                (4) retaliate or discriminate in any manner against the eligible employee, including application of the employee's use of caregiver leave as a factor in the employee's performance evaluation.

          C. Nothing in this section shall require an employer to provide sick leave to its employees.

          D. The provisions of the Caregiver Leave Act are nonexclusive and cumulative and are in addition to any other rights or remedies afforded by contract or under other provision of law. The Caregiver Leave Act does not prohibit an employer from providing greater sick leave benefits than are provided pursuant to that act.

          E. The secretary of workforce solutions shall adopt and promulgate rules to implement the provisions of the Caregiver Leave Act. These rules shall include, at a minimum, grievance procedures for according eligible employees recourse for violations of the Caregiver Leave Act.

     SECTION 4. A new section of Chapter 10 NMSA 1978 is enacted to read:

     "[NEW MATERIAL] SHORT TITLE.--Sections 4 through 6 of this act may be cited as the "Public Employee Caregiver Leave Act"."

     SECTION 5. A new section of Chapter 10 NMSA 1978 is enacted to read:

     "[NEW MATERIAL] DEFINITIONS.--As used in the Public Employee Caregiver Leave Act:

          A. "eligible employee" means a salaried officer or employee or legislator of the state who, in accordance with the policies of the state agency employing the officer or employee, is eligible to accrue sick leave;

          B. "family member" means an individual who is related within a third degree of consanguity or affinity to an eligible employee;

          C. "sick leave" means a leave of absence from employment for which a state agency pays an eligible employee due to illness or injury or to receive care from a licensed or certified health professional. "Sick leave" does not include leave to which an employee is entitled under the federal Family and Medical Leave Act of 1993, regardless of whether the employee uses sick leave during that leave; and

          D. "state" or "state agency" means the state of New Mexico or any of its branches, agencies, departments, boards, instrumentalities or institutions."

     SECTION 6. A new section of Chapter 10 NMSA 1978 is enacted to read:

     "[NEW MATERIAL] ACCUMULATED SICK LEAVE--APPLICATION TO FAMILY CAREGIVING.--

          A. A state agency that provides eligible employees with sick leave for an eligible employee's own illness or injury or to receive health care shall permit its eligible employees to use accrued sick leave to care for their family members in accordance with the same terms and procedures that the state agency imposes for any other use of sick leave by eligible employees.

          B. If an eligible employee requests or uses caregiver leave in accordance with the state agency's general sick leave policy, files a grievance for violation of this section, cooperates in an investigation or prosecution of an alleged violation of this section or opposes any policy, practice or act that is prohibited by the Public Employee Caregiver Leave Act, the state agency employing the eligible employee shall not:

                (1) discharge or threaten to discharge the eligible employee;

                (2) demote the eligible employee;

                (3) suspend the eligible employee; or

                (4) retaliate or discriminate in any manner against the eligible employee, including application of the employee's use of caregiver leave as a factor in the employee's performance evaluation.

          C. Nothing in this section shall require a state agency to provide sick leave to its employees.

          D. The provisions of the Public Employee Caregiver Leave Act are nonexclusive and cumulative and are in addition to any other rights or remedies afforded by contract or under other provision of law. The Public Employee Caregiver Leave Act does not prohibit a state agency from providing greater sick leave benefits than are provided pursuant to that act.

          E. Each state agency director shall adopt and promulgate policies to implement the provisions of the Public Employee Caregiver Leave Act. These policies shall include, at a minimum, grievance procedures for according eligible employees recourse for violations of the Public Employee Caregiver Leave Act. As used in this section, "state agency director" means:

                (1)  the director of the state personnel office for those state agencies to which the provisions of the Personnel Act apply; and

                (2) the director of a state agency to which the provisions of the Personnel Act do not apply."

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