In addition to the leave provided by your employer’s discretionary policies on vacation time, sick leave, personal days, or paid time off (PTO), you may have a legal right to take time off work for specific reasons under federal and New Mexico laws. For example, if you are caring for an ailing family member or recovering from childbirth, you may have a right to leave under the federal Family and Medical Leave Act (FMLA). Although New Mexico does not have its own family and medical leave law, it does require employers to give employees time off for military service, domestic violence, voting, and jury duty.
This article provides an overview of your right to time off from work in New Mexico. For more information, see our page on employee leave rights.
The federal Family and Medical Leave Act (FMLA) gives eligible employees the right to take up to 12 weeks of unpaid leave per year to care for a seriously ill family member (spouse, parent, or child), recuperate from a serious health condition, bond with a new child, or handle certain practical matters arising from a family member’s military service. The FMLA also requires employers to give employees up to 26 weeks off to care for a family member who suffered or exacerbated a serious illness or injury while serving in the military. (For purposes of this military family leave provision only, employees may take leave to care for a wider set of family members, including siblings, grandparents, and cousins, if they are next of kin to an injured service member.)
The FMLA applies to employers in all states with at least 50 employees. Employees are eligible only if they have worked for the employer for 12 months and have worked 1,250 hours in the 12 months before taking leave. (Learn much more about your rights under the FMLA at our Taking Family and Medical Leave page.)
Some states have their own family and medical leave laws, which provide additional rights. In some states, for example, a family and medical leave law applies to smaller employers, provides for more leave, or gives employees the right to take time off to care for a broader set of family members. Some states also provide leave for other specific purposes, such as time off to attend a child’s school events. However, New Mexico does not offer any additional family or medical leave rights beyond what the federal FMLA allows.
Another federal law, the Unformed Services Employment and Reemployment Rights Act (USERRA) gives eligible employees the right to be reinstated to their jobs after taking up to five years off for service in the U.S. military. (Find out all about USERRA in Taking Military Leave.) Employers may not discriminate against employees based on their military service. Employers also may not fire these employees for up to one year after they return from service, except for good cause, even if they would otherwise work at will. (See Employment At Will: What Does It Mean? to learn more.)
The laws of many states extend similar rights to employees who serve in the state’s military, including the right to take time off from work and to be reinstated afterwards. New Mexico law gives employees who are members of the U.S. armed forces, National Guard, or organized reserve the right to take unpaid leave for service (or for up to one year of hospitalization following discharge from the military). Employees may not be fired without cause for one year after returning from their military service.
Employers may not discriminate against or discharge employees based on their membership in the National Guard, nor may they prevent employees from performing their military duties.
New Mexico law gives employees the right to take time off work, without fear of retaliation, for the civic responsibility of voting. New Mexico employers must let employees take up to two hours off work, with pay, to vote. Indian, tribal, and pueblo elections are also covered by this law. Employers may decide when in the workday employees may take this time off. Employees whose workdays begin at least two hours after the polls open or end at least three hours before the polls close are not entitled to time off.
Employers must also allow employees to take time off to serve on a jury. Employers may not discourage or prevent employees from serving on a jury. Employees cannot be forced to use their sick or vacation time for jury service.
Time off to serve on a jury is unpaid. However, special rules apply to exempt employees. Under federal law, employers typically cannot deduct an exempt, salaried employee’s pay for time spent serving on a jury, unless the employee did no work for the entire week. For more information, see our article on pay docking.
All employers in New Mexico must allow employees who have been victims of domestic abuse (or whose family members have been victims of domestic abuse) to take time off work. Employees may take leave to:
Employers must allow employees to take up to 14 days off per year, unpaid. Leave may be taken all at once or intermittently as needed.