United States: New Mexico, New Laws: "Right-To-Work" Preemption, Gender-Neutral Restrooms, Criminal History Checks — And More

New Mexico's state legislature has been busy over the past few weeks acting on bills introduced earlier this year. The state has enacted at least nine new laws affecting employers, covering many topics from health care access and medical marijuana, to criminal background checks. Unless otherwise noted, these new provisions take effect on June 14, 2019, leaving New Mexico employers just a few months to prepare for compliance.

Statewide Preemption of Right-to-Work Ordinances

On March 27, 2019, New Mexico Governor Lujan Grisham signed HB 85, the Union Security Agreements bill, to upend "right-to-work" local ordinances in the state. The bill allows labor organizations and employers to require employees to be members of a union by way of a union security agreement in a collective bargaining agreement. The measure provides that the state has exclusive jurisdiction to prohibit the negotiation, execution, or application of agreements requiring membership in a labor organization as a condition of employment in New Mexico. Cities and localities are expressly banned from making or continuing to enforce any ordinance or rule that would prohibit such union membership agreements. According to the accompanying Fiscal Impact Report analysis of the bill, the legislation is a response to right-to-work ordinances passed by eight New Mexico counties, despite the statewide rejection of various right-to-work measures.1

Gender-Neutral Restrooms

In March, New Mexico enacted HB 388, the Gender-Free Bathrooms Act, regarding gender-neutral single occupancy restrooms. Under the law, any single-user toilet facility in a place of public accommodation must be made available to any person regardless of gender identity or sex. The law defines "public accommodation" as any establishment that provides or offers its services, facilities, accommodations, or goods to the public, but does not include a private club or other establishment that is by its nature and use distinctly private. A single-user restroom should also be designated for use by only one occupant at a time, except for family or assisted use, and should be labeled with gender-neutral signage. Businesses are not required to build a new single-user toilet if one is not already on site. The law becomes effective on July 1, 2019, by which date, businesses will need to ensure they are in compliance.

Criminal Background Check Restrictions

New Mexico Senate Bill 96, the Criminal Offender Employment Act, enacted on April 3, is a "ban the box" measure that prohibits private employers from inquiring about an applicant's arrest or conviction history on an initial employment application (written or electronic). An employer, however, may consider an applicant's conviction history after "discussion" of employment with the applicant. The law does not prohibit employers from notifying the public or an applicant that the law or an employer's policy could disqualify an applicant who has a certain criminal history from employment. Aggrieved applicants may seek relief under the state Human Rights Act.

Caregiver Leave Time

New Mexico has enacted a caregiver, or "kin care," leave statute, SB 123, the Caregiver Leave Act. The law requires a private employer2 that provides paid sick leave for its employees' own illnesses or injuries to permit employees to use that sick leave to care for a family member. The new law defines "family member" as an employee's spouse, domestic partner, or (whether by blood, marriage or adoption) a parent, grandparent, great-grandparent, child, foster child, grandchild, great-grandchild, sibling, niece, nephew, aunt, or uncle. The bill does not consider sick leave to include leave that would come under the federal Family Medical Leave Act. The statute neither requires employers to offer paid sick leave, nor prevents employers from providing greater sick leave benefits. It also prohibits retaliation against employees who request or use caregiver sick leave.

Protections for Medical Marijuana Users

SB 406 expands certain definitions under New Mexico's medical marijuana act (the Lynn and Erin Compassionate Use Act). As amended, the definition of "debilitating medical condition" now includes conditions such as (but not limited to) all seizure disorders, amyotrophic lateral sclerosis, Crohn's disease, hepatitis C infection, inflammatory autoimmune-mediated arthritis, intractable nausea or vomiting, obstructive sleep apnea, Parkinson's disease, posttraumatic stress disorder, severe chronic pain, and ulcerative colitis.

Among other things, and most relevant to employers, these amendments to the Compassionate Use Act make it unlawful for an employer to take adverse employment action against an applicant or an employee based on allowed conduct under the act. Employers may take adverse action, however, if not doing so would result in loss of a monetary or licensing-related benefit under federal law or regulations. Moreover, the amended law does not restrict an employer's ability to prohibit or take adverse employment action against an employee for using or being impaired by medical cannabis in the workplace or during work hours. Further, the adverse action provisions do not apply to an employee working in a safety-sensitive position. "Safety sensitive position" is defined as "a position in which performance by a person under the influence of drugs or alcohol would constitute an immediate or direct threat of injury or death to that person or another."

Minimum Wage Rates, and Wages of Tipped Employees

On April 1, with SB 437, New Mexico enacted a series of increases to its minimum hourly wage rate. The state minimum wage, which is currently $7.50 per hour, will increase to $9.00 per hour beginning January 1, 2020, $10.50 per hour beginning January 1, 2021, $11.50 per hour beginning January 1, 2022, and $12.00 per hour beginning January 1, 2023. In addition, tipped workers will receive an increased minimum cash wage on the same schedule, from the current $2.13, to $2.35 on January 1, 2020, then to $2.55 on January 1, 2021, then to $2.80 on January 1, 2022, and finally to $3.00 on January 1, 2023. Another update clarified that tip pooling should be allowed among wait staff, rather than as previously designated, among "employees" generally.3

Ban on E-Cigarettes

Earlier in April, New Mexico also adopted HB 256, which amends the Dee Johnson Clean Indoor Air Act to include e-cigarettes in the existing smoking ban. Any type of inhalant, whether burned or aerosolized, is now banned at indoor workplaces. Importantly, the ban now also applies to employers with just one or more employees. Outdoor smoking areas remain allowed, as long as they are located a reasonable distance from the building and as long as employees and the public are not subject to breathing secondhand smoke in order to enter the building. As with most of the bills discussed herein, the expanded smoking ban goes into effect on June 14, 2019.

Health Insurance Regulations

Finally, New Mexico enacted two health insurance related measures this term. The first such bill, HB 436, brings state medical insurance policies more into alignment with the Affordable Care Act to ensure that certain protections of the federal law remain available in New Mexico if court decisions or laws rescind those protections on the federal level. Of particular interest, the amendments forbid insurance companies to use gender as a factor to limit coverage, base costs on gender or genetic information, discriminate in coverage against certain protected classes, or deny insurance based on pre-existing conditions.

SB 354 amends health insurance coverage requirements for telemedicine services. It provides that any deductibles, copayments, or coinsurance payments for telemedicine may not exceed those charged for in-person services. Additionally, if no in-network provider is available to provide telemedicine services in a timely manner, the insurer must allow coverage for out-of-network providers.

As a result of this flurry of legislation, employers with operations in New Mexico will need to review minimum wage rates as well corporate policies on various issues, including bathroom accessibility, medical marijuana use (and, relatedly, drug testing), hiring practices, and smoking. Employers should consult with experienced employment counsel with any questions about these new laws.

Footnotes

1 N.M. Legis. Fin. Comm., Fiscal Impact Rep. HB 85 (N.M. 2019).

2 Additional, separate caregiver leave provisions apply to public employees.

3 See Charlotte Lamont and Sebastian Chilco, New Mexico Increases Minimum Wage and Creates Uncertainty in Tip Pooling, Littler ASAP (Apr. 3, 2019).

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