Commentary: Legislature considers significant employment bills

Little West

New Mexico legislators are considering numerous bills that, if enacted, would affect employment laws for private employers in significant ways. Caregiver leave, minimum-wage increases and new pregnancy accommodation requirements are just some of the most noteworthy employment-related bills presently being considered.

Caregiver Leave Act

The Caregiver Leave Act, House Bill 86, would require employers that offer sick leave for an employee’s illness to allow accrued sick time to be used to care for sick family members under the same terms and procedures that the employer imposes for any other use of sick leave by the employee. This bill passed in the House on a 47-18 vote and moves to the Senate.

Pregnancy discrimination, accommodation

The Pregnant Worker Accommodation Act, HB 179, would require employers of four or more employees to make reasonable accommodations for an employee or applicant with a need arising out of pregnancy, childbirth and related conditions, absent an undue hardship on the employer. Reasonable accommodations would include modifying or adapting an employee’s work environment, work rules or job responsibilities for as long as necessary to enable the employee to perform her job. The bill also would prohibit employers from discriminating or retaliating on the basis of a need arising from a person’s pregnancy-related conditions.

Employee Credit Information Privacy Act

The Employee Credit Information Privacy Act, Senate Bill 280, would prohibit employers from discriminating on the basis of an applicant’s or employee’s credit information. Credit information is defined to mean written, oral or other communication prepared by a consumer reporting agency regarding a person’s creditworthiness, credit standing or credit capacity.



Additional employment-related bills

u The Criminal Offender Employment Act, SB 78, would prohibit private employers who use a written employment application from inquiring into an applicant’s conviction record on the employment application. This ban-the-box bill would allow employers to consider an applicant’s conviction only after review of the written application and upon discussion of employment with the applicant.

u The Military Re-employment Amendment, HB 83, passed unanimously in the House and proceeds to the Senate. This bill would extend New Mexico’s existing law protecting the re-employment of people in the armed forces to those who have served in the National Guard of any other state or territory of the United States, clarifying that the protections are not limited only to members of the New Mexico National Guard.

u The Cannabis Revenue and Freedom Act, HB 89, is an effort to capture income from marijuana-related taxes to assist the state’s finances, but it includes a significant employment provision. Section 32 of the bill provides that unless an employer establishes that an employee’s compliant use of marijuana has impaired the employee’s ability to perform the employee’s job responsibilities, the employer shall not take any adverse action against the employee, including for a drug test that shows the presence of marijuana components or metabolites. Essentially, this would shift the burden of proof from the employee to the employer in a case where termination for marijuana usage or a positive drug test is challenged.

Proposed changes to the state’s workers’ compensation law would include eliminating temporary total disability payments to a worker who quits his or her employment where the separation is unrelated to the on-the-job injury. SB 280 would also limit a permanent partial disability rating to be equal to the impairment rating for a worker who is responsible for the separation of employment that is unrelated to the workplace injury.

Penalties for workplace health and safety violations could go up significantly under SB 229. The maximum civil penalty for willful or repeated violations would increase from $70,000 to $124,709 for each violation, with the minimum violation going up from $5,000 to $8,908 per willful violation. Penalties for serious violations would also increase under this bill.

Little V. West is an attorney at Holland & Hart’s Santa Fe office. He counsels businesses on the development and implementation of best practices to comply with labor and employment laws. He can be reached at LVWest@holland hart.com or 505-988-4421.

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