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April 2021 New Mexico HR Legal Updates

New Mexico Passes Recreational Marijuana

Update Applicable to:
All employers operating within New Mexico.

What happened?
On April 12, 2021, New Mexico Governor Lujan Grisham signed into law the legalization of the use and possession of recreational cannabis.

What are the details?
By and large, workplace policies will be unchanged. The legislation that was passed does not impact employer’s ability to maintain drug-free workplaces. Employers may still prohibit employees from being in possession of “intoxicating substances” at work or during work hours. 

An employer may continue to adopt and implement a written “zero tolerance” policy regarding the use of cannabis products, and such a policy may permit employers to discipline or terminate the employment of an employee based on a positive drug test that indicates any amount of delta-9-tetrahydrocannabinol or delta-9-tetrahydrocannabinol metabolite. Note that this allowance for “zero tolerance” policies does not specifically include applicants.

An article review of the bill can be found here.

The bill can be found here.

What do employers need to do?
Employers may adjust their workplace policies as they wish, the bill does not require employers to change current practices, assuming they are compliant with existing medical marijuana laws in the state.

August 2020 New Mexico HR Legal Updates

New Mexico Implements Employer Reporting Rule for COVID-19 Cases

What happened?
Effective August 5, 2020, the Occupational Health and Safety Bureau of the New Mexico Environment Department (NM OSHA) implemented an emergency amendment to its injury and illness reporting regulation, 11 NMAC §5.1.16.

What are the details?
The new provision, which will remain in effect for 120 days unless it is made permanent, requires employers in New Mexico to report to NM OSHA any case in which an employee tests positive for COVID-19 within four hours of the employer learning about it. Notably, a Department spokesperson confirmed that the Department interprets the reporting requirement to cover any employee who reports a positive test, including employees whose illness is not work-related.

This emergency reporting rule can be found here.

What do employers need to do?
Employers in New Mexico should immediately start recording and reporting the NM OSHA within four hours when they are notified of an employee reporting COVID-19 positive.


June 2020 New Mexico HR Legal Updates

Summary of State Laws (Q1 & Q2 2020)

Nondisclosure Provisions
Effective May 20, 2020, employers cannot require that an employee, as a term of employment, sign a nondisclosure provision of a settlement agreement relating to a claim of sexual harassment, discrimination, or retaliation in the workplace.

Confidentiality provisions in settlement agreements are permitted when they relate to the monetary amount of a settlement or, at the employee’s request, they prohibit disclosure of facts that could lead to the identification of the employee. However, the existence of a confidentiality provision does not prohibit the disclosure of information required for a judicial, administrative, or other governmental proceeding by subpoena or other applicable order required by law.

Pregnancy Accommodation
Effective May 20, 2020, the New Mexico Human Rights Act requires covered employers to provide a reasonable accommodation for an employee or applicant arising from pregnancy, childbirth, or a condition related to pregnancy or childbirth unless doing so would create an undue hardship on the employer’s business. Employers cannot, however, require an employee to take paid or unpaid leave if another reasonable accommodation can be provided, unless the employee voluntarily requests to be placed on leave or the employee is placed on leave pursuant to federal law.

In addition, the Act includes pregnancy, childbirth, or related medical conditions as a protected class.

Bernalillo County Paid Leave
Effective July 1, 2020, employers with two or more employees within Bernalillo County must provide paid leave to employees that can be used for any reason.

Employees accrue one hour of paid leave for every 32 hours worked, up to 28 hours in a year. Up to 28 hours of paid leave may be used in a year.

Employers must allow employees to carry over up to 28 hours of unused accrued paid leave to the following year.

Effective July 1, 2021, employers with 11 or more employees must provide accrual and use of paid leave of up to 44 hours in a year.

Effective July 1, 2022, employers with 35 or more employees must provide accrual and use of paid leave of up to 56 hours in a year.

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