New Mexico Register / Volume XXXVI,
Issue 23 / December 9, 2025
TITLE
11 LABOR AND WORKERS
COMPENSATION
CHAPTER
1 LABOR GENERAL PROVISIONS
PART
7 CAREGIVER
LEAVE
11.1.7.1 ISSUING AGENCY: Labor Relations Division (LRD) of the New
Mexico Department of Workforce Solutions (NMDWS).
[11.1.7.1
NMAC – N, 1/01/2026]
11.1.7.2 SCOPE: Employers and employees within the state
of New Mexico.
[11.1.7.2
NMAC – N, 1/01/2026]
11.1.7.3 STATUTORY AUTHORITY: Section 50-16-3
NMSA 1978 authorizes the LRD of the NMDWS to promulgate rules to implement the
provisions of the Caregiver Leave Act.
[11.1.7.3 NMAC – N, 1/01/2026]
11.1.7.4 DURATION: Permanent.
[11.1.7.4 NMAC – N, 1/01/2026]
11.1.7.5 EFFECTIVE DATE: January 1, 2026, unless
a later date is cited at the end of a section.
[11.1.7.5
NMAC – N, 1/01/2026]
11.1.7.6 OBJECTIVE: To implement grievance procedures articulated
in Section 50-16-1 NMSA 1978 providing eligible employees recourse for
violations of the Caregiver Leave Act.
[11.1.7.6
NMAC – N, 1/01/2026]
11.1.7.7 DEFINITIONS: All definitions contained in
Section 50-16-2 NMSA 1978, are incorporated herein by reference. As used in these rules:
A. “eligible employee” means, except as provided
pursuant to Section 50-16-4 NMSA 1978, 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 the
spouse or domestic partner of or by blood, marriage or legal adoption a parent,
grandparent, great-grandparent, child, foster child, grandchild,
greatgrandchild, brother, sister, niece, nephew, aunt or uncle of 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 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.
[11.1.7.7
NMAC – N, 1/01/2026]
11.1.7.8 ACCRUAL AND USAGE
A. An employer that
provides eligible employees with sick leave for the employee’s own illness or
injury shall permit eligible employees to use this same accumulated leave to
care for family members in accordance with the same terms and procedures the
employer uses for any other use of sick leave by eligible employees.
B. An eligible employee’s employer
shall not discharge or threaten to discharge, demote, suspend, or retaliate or
discriminate in any manner, including using the employee’s use of caregiver
leave as a factor in the employee's performance evaluation, against an employee
because that 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 the 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 or practice established pursuant to the Caregiver Leave
Act.
[11.1.7.8
NMAC – N, 1/01/2026]
11.1.7.9 COMPLIANCE MEASURES: Compliance
assurance measures available to the LRD include the following:
A. Investigations of alleged violations of the Caregiver
Leave Act upon complaints filed by individuals;
B. Interviews of employers, their managers and employees and
any other witness who may have relevant information;
C. Requests for production of records and other information
from employers;
D. Administrative subpoenas for records and other
information from employer, or for the taking of depositions from employers,
their manager and other potential witnesses;
E. Audits of employer records; and
F. Education and outreach efforts regarding the
requirements of the Caregiver Leave Act.
[11.1.7.9
NMAC – N, 1/01/2026]
11.1.7.10 NOTICE BY EMPLOYERS:
A. Employers shall give written or
electronic notice to an employee at the commencement of employment of the
employee’s rights to earned sick leave; the matter in which sick leave is
accrued and calculated; the terms of use of earned sick leave as guaranteed by
the Caregiver Leave Act; that retaliation against employees for using sick
leave is prohibited; that the employee’s right to file a complaint with the LRD
if earned sick leave accrual or use is denied or if the employee is retaliated
against; and all means of enforcing the Caregiver Leave Act. This notice must
be in English, Spanish, or any other language that is the first language spoken
by at least ten percent of the employer’s workforce, as requested by the
employee
B. Employers shall display a poster
containing the information required in Section A, above, in a conspicuous and
accessible place in each establishment where employees are employed. The poster
should be in English, Spanish and in any language that is the first language
spoken by at least ten percent of the employer’s workforce.
[11.1.7.10
NMAC – N, 1/01/2026]
11.1.7.11 COMPLAINTS: Individuals may
file complaints alleging violations of the Caretaker Leave Act or these rules,
including retaliation, with the LRD.
A. Complaints must be submitted using a form approved by the
LRD.
B. Complainants may complete the form on their own or have
an LRD employee assist in completing the form based on the complainant’s statements
in-person or by telephone. If the LRD provides assistance
in completing the form by telephone, it shall mail or email the unsigned form
to the complainant to be reviewed, approved, signed, and submitted to the LRD
for filing. The complaint form does not need to be notarized. The complainant
may attach additional information or documentation supporting the complaint,
but this is not a requirement.
C. Upon receipt of the completed complaint form, the LRD
will:
(1) Review the complaint to determine
whether the LRD has jurisdiction;
(2) Determine if more information is
needed from the complainant; and
(3) Interview the complainant, if
necessary, to clarify any discrepancies, omissions, or errors in the complaint
form, and obtain additional information regarding the complaint.
(4) If a complainant is represented by an
attorney, the attorney shall submit a written notice of the representation to
the NMDWS of said representation and shall also indicate in that notice whether
the NMDWS may communicate with the complainant directly without the attorney
being present.
(5) The complaint form will give the
complainant the opportunity to choose to correspond with the LRD by email or
regular mail. If the complainant does not make a choice, the correspondence
with the complainant will be by regular mail.
(6) The LRD shall send complainants
written notification summarizing the status of the investigation by
complainant’s chosen correspondence method no less frequently than every 90 days
starting from the date the complaint is received by the LRD.
(7) The LRD shall provide limited English
proficient (LEP) complainants, employers and witnesses with free language
assistance services according to the NMDWS language access plan throughout the
complaint process.
[11.1.7.11
NMAC – N, 1/01/2026]
11.1.7.12 JURISDICTION: The LRD’s
authority is limited to the enforcement of the laws of the state of New Mexico.
The LRD does not have authority to enforce the laws of any other state. The LRD
may close a complaint that alleges violations of the Caregiver Leave Act for
work performed outside the state of New Mexico, including work performed
entirely on tribal land.
[11.1.7.12
NMAC – N, 1/01/2026]
11.1.7.13 DEADLINE FOR FILING A COMPLAINT: All complaints
alleging violations of the Caregiver Leave Act must be filed with the LRD
within three years of when the last alleged violation occurred. The LRD will
accept complaints for investigation in which any portion of the alleged
violation falls within the three-year time limit.
[11.1.7.13
NMAC – N, 1/01/2026]
11.1.7.14 CONFIDENTIALITY: The LRD will maintain
the complainant’s identity as confidential unless disclosure is necessary to
facilitate investigation or resolve the complaint or is otherwise required by
law.
[11.1.7.14
NMAC – N, 1/01/2026]
11.1.7.15 CLOSURE OF COMPLAINTS: The LRD may close
any complaint alleging violations of the Caregiver Leave Act after the initial
screening with no further investigation if the LRD determines that it does not
have jurisdiction, it is unable to identify complainant’s employer after
reasonable efforts have been made, or if no portion of the alleged violation
falls within a three-year time period. Upon closure, the LRD will send the
complainant a letter setting forth the reasons for closure.
[11.1.7.15
NMAC – N, 1/01/2026]
11.1.7.16 NOTICE OF COMPLAINT TO THE
EMPLOYER:
Within 10 business days of receipt of the complaint, the LRD shall send the
employer a copy of the complaint form, any supporting documentation received
from the complainant, and a blank response form. The initial letter shall be
mailed to the last known address of the employer. The notice to the employer
will give the employer the opportunity to choose to receive correspondence from
the LRD by email or regular mail, but if the employer does not make a choice,
the correspondence will be sent by regular mail.
[11.1.7.16
NMAC – N, 1/01/2026]
11.1.7.17 EMPLOYER REPRESENTATION: If an employer is
represented by an attorney at any time during the investigation, the attorney
shall submit a written notice to the LRD of representation. This written notice
shall indicate whether the LRD may communicate with the employer directly
without the attorney being present. Pursuant to Rule 16-402 NMRA, the Office of
General Counsel for the NMDWS is not prohibited from communicating directly
with employees of an employer, with the exception of persons having a
managerial responsibility on behalf of the employer, regarding the subject
matter of the representation even though the employer itself is represented by
counsel.
[11.1.7.17
NMAC – N, 1/01/2026]
11.1.7.18 RESPONSE BY EMPLOYER: The employer shall respond in writing to the initial
letter regarding the complaint within 10 business days of receipt. The employer
shall also provide the LRD with true and accurate copies of the records that
are required to be maintained with respect to the complainant. The employer
shall produce any other record related to the complainant requested by the LRD.
The employer may provide other records of its choosing
in responding to the complaint, but this is not a requirement. In its
discretion, the LRD may grant an employer a reasonable extension to respond to
the initial letter if requested by the employer in wiring specifically setting
forth the good cause upon which the request for an extension is based.
[11.1.7.18
NMAC – N, 1/01/2026]
11.1.7.19 REQUESTS FOR ADDITIONAL
INFORMATION:
In its discretion, the LRD may interview the employer and other witnesses to
obtain additional information relevant to the investigation and may issue an
administrative subpoena to compel production of records necessary to conduct
the investigation if such records are not voluntarily produced by the employer.
[11.1.7.19
NMAC – N, 1/01/2026]
11.1.7.20 REPLY BY COMPLAINANT: If the employer
disputed the alleged violation(s) and submits relevant documentary evidence,
the LRD shall allow the complainant an opportunity to submit a written reply to
the employer’s response along with additional documentation. The complainant has
10 business days from the date of the complainant’s receipt of the employer’s
response to submit the reply. In its discretion, the LRD may interview the
complainant and other witnesses to obtain additional information relevant to
the investigation.
[11.1.7.20
NMAC – N, 1/01/2026]
11.1.7.21 SETTLEMENT
BY PARTIES: At any stage of the
investigation, the LRD may schedule a settlement meeting between the parties. The LRD may inform the parties of the
preliminary conclusions based on the evidence reviewed, including any amount owed
to the complainant for violations of the Caregiver Leave Act, as determined by
the LRD. If a settlement is reached, it shall be reduced to writing and signed
by the complainant and the employer. After the settlement is signed by both
parties, the LRD will close the investigation and advise the parties in writing
that the case is closed.
[11.1.7.21
NMAC – N, 1/01/2026]
11.1.7.22 ADMINISTRATIVE
DECISION: The LRD shall
complete its investigation of a complaint and issue a written decision if a
settlement is not reached, or if a settlement is reached but the employer fails
to comply with the terms of the settlement, and a party submits a written
request to the LRD to reopen prior to the expiration of the three year time
limit outlined in NMAC 11.1.7.13. After
completing its investigation the LRD shall issue an
administrative decision on the complaint.
The decision shall:
A. be issued within 180 days from the
date the complaint was received;
B. be in writing and set forth findings
of facts and conclusions of law, including a calculation of the amount owed, if
any, to complainant; and
C. inform the parties that if they
disagree with the decision, there is no right of administrative appeal;
[11.1.7.22
NMAC – N, 1/01/2026]
11.1.7.23 EMPLOYER
RECORDS: Section 50-17-7 NMSA 1978 requires employers to keep
records documenting hours worked by employees and earned sick leave taken by
employees for the 48-month period immediately preceding the date the record was
created. If the LRD finds, during the course of its investigation, the employer
did not maintain and produce the required records or that the records are
inaccurate or incomplete, the LRD may base the calculation of the amount owed
to complainant on other reasonable, credible evidence, including by not limited
to the complainant’s estimates.
[11.1.7.23
NMAC – N, 1/01/2026]
11.1.7.24 REOPENING
AN INVESTIGATION: A complainant or
employer may request in writing a reopening of the investigation of a complaint
upon a showing of good cause for doing so.
Examples of good cause include, but are not limited to, failure of an
employer to comply with the terms of the settlement, or the discovery of new,
previously undisclosed evidence that would have changed the result of the
previous determination. Except in the
case of unfulfilled settlement terms, the LRD’s determination of whether good
cause to reopen exists is final and shall not be subject to any right of appeal
or other review. All requests for
reopening must be received by the LRD before the three-year time limit
referenced in 11.1.7.13 NMAC expires. Reopening
requests received after the three-year period expires will not be considered. Upon reopening, the LRD may pursue any
investigatory steps available under the law and pursuant to these regulations
and may affirm, modify, or reverse, in whole or in part, any previous decision
issued.
[11.1.7.24
NMAC – N, 1/01/2026]
11.1.7.25 STANDARD
OPERATING PROCEDURES: The LRD may adopt
standard operating procedures to provide additional instructions for its
employees in the performance of their duties and responsibilities.
[11.1.7.25
NMAC – N, 1/01/2026]