New
Mexico Register / Volume XXXVI, Issue 10 / May 20, 2025
This is an
amendment to 1.7.7 NMAC, Sections 8, 10, 12 and 14, effective 5/20/2025.
1.7.7.8 ANNUAL LEAVE:
A. Employees,
except those on full-time educational leave with pay, absence without leave,
leave without pay, unpaid FMLA leave, or suspension without pay shall accrue
annual leave at the rate of:
(1) 3.08 hours per pay period if less than three years of cumulative
employment,
(2) 3.69 hours per pay period if three years or more but less than seven
years of cumulative employment,
(3) 4.61 hours per pay period if seven years or more but less than eleven
years of cumulative employment,
(4) 5.54 hours per pay period if eleven years or more but less than fifteen
years of cumulative employment; or
(5) 6.15 hours per pay period if fifteen years or more of cumulative
employment.
B. For
purposes of Subsection A of 1.7.7.8 NMAC, any
employment in the classified or exempt service and judicial or legislative
branches of New Mexico state government shall be counted in determining years
of cumulative employment in the classified service.
C. For
purposes of Subsection
A of 1.7.7.8 NMAC, employment in programs transferred into the
classified service by legislation or executive order shall count as cumulative
employment.
D. Employees
employed on a part-time basis and employees on furlough who work at least eight
hours in a pay period shall accrue annual leave on a prorated basis.
E. A
maximum of 240 hours of annual leave shall be carried forward after the last
pay period beginning in December. [However,
there shall be no limit to the number of annual leave hours that shall be
carried forward after the last pay period of December 2020. Any annual leave hours above 240 that are
carried forward past December 2020 and are not used prior to the pay period
ending July 9, 2021, shall not be carried forward beyond that pay period.]
F. Annual
leave shall not be used before it is accrued and must be authorized before it
is taken in accordance with agency policy.
G. Employees
separating from the classified service, except by a reduction in force, shall
be paid for accrued annual leave, as of the date of separation, up to a maximum
of 240 hours at the current hourly rate of their base salary. This payout shall not exceed 240 hours [,
notwithstanding any annual leave accrual beyond 240 hours that may occur
pursuant to Subsection E of 1.7.7.8
NMAC].
H. Employees
separating from the classified service as the result of a reduction in force
shall be paid for all accrued annual leave, as of the date of separation, at
their current hourly rate [, excluding any annual leave accrual beyond 240
hours that may occur pursuant to Subsection
E of 1.7.7.8 NMAC].
I. The estate of an
employee who dies while in the classified service shall be paid for the
employee’s total accrued annual leave [, excluding any annual leave accrual
beyond 240 hours that may occur pursuant to Subsection E of 1.7.7.8 NMAC].
[1.7.7.8 NMAC - Rp,
1 NMAC 7.7.8, 7/7/2001; A, 11/14/2002; A, 1/1/2021; A, 8/1/2021; A, 5/20/2025]
1.7.7.10 SICK LEAVE:
A. Employees,
except those on full-time educational leave with pay, absence without leave,
leave without pay, unpaid FMLA leave, or suspension without pay, shall accrue
sick leave at the rate of 4.00 hours per pay period.
B. Employees
employed on a part-time basis and employees on furlough who work at least eight
hours in a pay period shall accrue sick leave on a prorated basis.
C. Sick
leave may not be used before it is accrued and must be authorized or denied
according to agency policy.
D. An
employee may use sick leave for personal medical treatment or illness or for
medical treatment or illness of a family member, or of a person residing in the
employee's household. Employees affected
by pregnancy, childbirth, and related medical conditions must be treated the
same as persons affected by other medical conditions.
E. There
is no limit to the amount of sick leave that may be accrued.
F. No
payment shall be made for accrued sick leave at the time of separation from the
classified service except as provided by law.
G. Former
employees who were laid off and are returned to work in accordance with the
provisions of 1.7.10.10
NMAC, shall have restored the sick leave they had accrued as of the date
of layoff.
H. Payment for Accumulated Sick Leave:
(1) In accordance with the provisions of Section 10-7-10 NMSA
1978, employees who have accumulated 600 hours of unused sick leave are
entitled to be paid for unused sick leave in excess of
600 hours at a rate equal to fifty percent of their hourly rate of base pay for
up to 120 hours of sick leave. Payment for unused sick leave may be made only
once per fiscal year on either the payday immediately following the first full
pay period in January or the first full pay period in July.
(2) Immediately prior to retirement from the classified service, employees
who have accumulated 600 hours of unused sick leave are entitled to be paid for
unused sick leave in excess of 600 hours at a rate
equal to fifty percent of their hourly rate of base pay for up to 400 hours of
sick leave.
I. An agency shall not
discharge or threaten to discharge, demote, suspend or retaliate or
discriminate against an employee because that employee requests or uses sick
leave for medical treatment or illness of a family member in accordance with
the agency’s sick leave policy, files an appeal alleging violation of the
Public Employee Caregiver Leave Act, Section 10-16H-1, NMSA 1978, et seq.,
cooperates in an investigation or prosecution of an alleged violation of that
act or opposes any policy or practice established pursuant to that act.
[J. Denials of an employee’s request for
sick leave related to medical treatment or illness of a family member, or
alleged violations of the Public Employee Caregiver Leave Act by an agency
directly impacting an employee, may be appealed to the director through the
agency’s chain-of- command. Appeals to the director must be in writing and
include the agency’s analysis of the reasons for the appeal. The director’s
decision is final and binding.]
[1.7.7.10 NMAC - Rp, 1 NMAC 7.7.10, 7/7/2001; A, 11/14/2002; A, 1/1/2020; A, 8/1/2021; A, 5/20/2025]
1.7.7.12 FAMILY AND MEDICAL LEAVE:
A. In
addition to other leave provided for in 1.7.7 NMAC eligible employees are entitled
to leave in accordance with the Family and Medical Leave Act (FMLA) of 1993
[29 U.S.C. Section 2601 et seq.], as amended. Employees who have been in the classified
service for at least 12 months (which need not be consecutive) and who have
worked, as defined by Section 7 of the Fair Labor Standards Act [29 U.S.C. Section 201 et seq.],
at least 1250 hours during the 12-month period immediately preceding the start
of FMLA leave are eligible employees. In addition, employment in the exempt
service, legislative or judicial branch, shall count as classified employment
for purposes of this rule.
B. An
eligible employee is entitled to a total of 12 weeks of unpaid FMLA leave in a
12-month period for the birth and care of a newborn child of the employee
within one year of the birth; the placement with the employee of a child for
adoption or foster care and the care of the newly placed child within one year
of placement; the care of the employee’s child, parent, spouse, or domestic
partner who has a serious health condition; and the employee’s own serious
health condition that makes the employee unable to perform the essential
functions of their job; or any other qualifying exigency arising out of the
fact that the spouse, domestic partner, son, daughter or parent of the employee
is on covered active duty or has been notified of an impending call or order to
covered active duty status, as defined in the FMLA regulations [29 CFR
825.102], including issues resulting
from short-notice deployment, military events and related activities, childcare
and school activities for the military member’s child, financial and legal
arrangements to address the military member’s absence while on covered active
duty, counseling, spending time with the military member while on short-term
leave, post-deployment activities, care of the military member’s parent who is
incapable of self-care, and other activities in accordance with the FMLA
regulations [29 CFR 825.126]. The
12-month period is calculated forward from the date an employee’s first FMLA
leave begins.
C. An eligible
employee who is the spouse, domestic partner, son,
daughter, parent, or next of kin of a covered servicemember with a serious
illness or injury sustained in the line of duty on active duty is entitled to
up to 26 weeks of unpaid FMLA leave in a single 12-month period to care for the
servicemember. This military caregiver leave is available during a single
12-month period during which an eligible employee is entitled to a combined
total of 26 weeks of all types of FMLA leave. The 12-month period is calculated
forward from the date an employee’s first FMLA leave begins. [29 CFR 825.127]
D. An employee may elect, or an agency
may require the employee, to substitute any of the
employee’s accrued annual leave, accrued sick leave, personal leave day,
accrued compensatory time, or donated leave for any part of unpaid FMLA leave.
E. If a paid holiday occurs within a
week of FMLA leave, the holiday is counted towards the FMLA entitlement.
However, if an employee is using FMLA in increments less than one week, the
holiday does not count against
the employee’s FMLA entitlement unless the employee was otherwise scheduled and
expected to work during the holiday.
F. Employees
shall not accrue annual and sick leave while on unpaid FMLA leave.
G. Agencies
shall post the required FMLA notices, maintain the required employee records,
and implement agency policies in accordance with the FMLA. All medical records
and correspondence relating to employees and/or their families shall be
considered confidential in accordance with 1.7.1.12 NMAC.
[H. Disputes
over the administration of this rule shall be forwarded to the director for
resolution.]
[I] H. As a condition for restoring an employee whose own serious
health condition required FMLA leave, an agency may require the employee to
provide certification from their health care provider that the employee is able
to resume work. The fitness-for-duty
certification may only pertain to the specific health condition that required
FMLA leave.
[1.7.7.12 NMAC - Rp, 1 NMAC 7.7.12, 7/7/2001; A, 11/14/2002; A, 6/30/2006;
A, 10/15/2008; A/E, 1/27/2009; A, 5/14/2009; A, 1/1/2020; A, 8/1/2021; A,
5/20/2025]
1.7.7.14 ADMINISTRATIVE LEAVE:
A. An
agency may authorize employees leave with pay for up to five consecutive work
days when it is in the best interests of the agency to do so. Administrative
leave in excess of five consecutive workdays must have
the prior written approval of the [director] state personnel office
(SPO) director except for administrative leave granted in accordance with
the provisions of Paragraph (2) of Subsection B of [1.7.8.19] 1.7.8.18 NMAC or Paragraph (2) of
Subsection D of [1.7.8.19] 1.7.8.18 NMAC or 1.7.11.12 NMAC.
B. Employees
who are members of a state board or commission may be entitled to leave with
pay to attend meetings or transact business of the board or commission.
C. Employees
who are registered voters may absent themselves from
work for two hours for the purpose of voting between the time of the opening
and the time of the closing of the polls.
The employer may specify the hours during the period in which the voter
may be absent. This leave is not
available to employees whose work day begins more than two hours subsequent to the time of opening the polls or ends more than three hours prior to the time of closing the
polls. This leave is only available for
those elections listed in Subsection A of Sections 1-12-42 and 1-1-19 NMSA 1978
and does not apply to absentee or early voting.
D. Employees shall be entitled to administrative leave when appearing
during regularly scheduled work hours in obedience to a subpoena as a witness
before a grand jury or court or before a federal or state agency. Fees received
as a witness, excluding reimbursement for travel, shall be remitted to the
employee's agency. Employees shall not
be entitled to administrative leave to participate in judicial or
administrative proceedings against an agency or the state of New Mexico in
which the employee is a litigant in or party to the proceeding.
E. Employees
shall be entitled to leave with pay for serving on a grand or petit jury during
regularly scheduled work hours. Fees received as a juror, excluding
reimbursement for travel, shall be remitted to the employee's agency.
F. Employees with a
child or children enrolled in a school shall be entitled to the following
amounts of paid administrative leave for parent-teacher conferences, provided
that the express purpose of the leave is to attend a parent-teacher conference
during the employee’s normal work day; provided that the leave is not being
requested for parental participation or assistance in extra-curricular school
activities; provided that the employee follows any procedures required by the
office or agency to request paid administrative leave for the parent-teacher
conference; and, provided that the employee provides reasonable notice to the
agency in an effort to avoid disruption to operational needs:
(1) Employees
with three or more children may be granted up to four hours of paid
administrative leave during the spring semester, and up to four hours of paid
administrative leave during the fall semester for parent-teacher conferences;
and
(2) Employees
with one child or two children may be granted up to two hours of paid
administrative leave during the spring semester, and up to two hours of paid
administrative leave during the fall semester for parent-teacher conferences.
(3) Two employees may request available
leave to attend the same scheduled parent-teacher conference for their
children.
[1.7.7.14 NMAC - Rp,
1 NMAC 7.7.14, 7/7/2001; A, 11/14/2002; A, 7/5/2005; A, 1/1/2020; A, 8/1/2021;
A, 5/20/2025]