On October 15, 2019, the Bernalillo County, New Mexico Commissioners voted to amend their mandatory paid time off (PTO) ordinance, enacted only two months earlier.  As we previously reported, the ordinance will require certain employers with a physical premise in the county’s unincorporated limits to provide PTO that employees can use for any reason beginning July 1, 2020.

Effective Date: The enacted amendments generally change the law's effective date from July 1, 2020 to January 1, 2020. However, this change did not revise the law's operative date, i.e., when employers must provide, or allow employees to accrue, leave. Recognizing this change impacts provisions governing when accrual begins and when leave can be used, county commissions have proposed a new amendment that reverts the law’s effective date to July 1, 2020.  On October 29, 2019, county commissioners voted to approve this correction. The proposed amendments will be published, circulated, and voted on at a future hearing; if approved at the second hearing, the amendments will become part of the law.

When Accrual Begins: The enacted amendment removes the 90-day waiting period for when leave begins to accrue, so accrual will start when employment begins or when the law takes effect for current employees on that date.

Accrual & Carry-Over Caps: The original ordinance established accrual caps applicable to all covered employers that gradually increased, which also served as the carry-over cap. The enacted amendment creates a three-tier system that impacts which employers are subject to a higher accrual and carry-over cap in future years and the accrual and carry-over cap amount (unless an employer selects a higher number). On July 1, 2020, the annual accrual and carry-over cap for all employers will be 28 hours – an increase from 24 hours. Beginning July 1, 2021, employers with 11 or more employees must comply with a 44-hour cap, an increase from 40 hours. On July 1, 2022, the 56-hour cap – no change in amount – will apply only to employees of employers with 35 or more employees.

How Much Leave Employees Can Use: The original ordinance did not limit how much leave employees were entitled to use. The enacted amendment establishes an annual use cap that is the same as the amended accrual and carry-over caps.

Retaliation / Adverse Action Damages: The original ordinance allowed employees subject to retaliation or adverse action to recover actual damages, including back pay. The enacted amendment increases potential recovery to one-and-a-half times the back pay amount.

Next Steps: Employers with operations in the county's unincorporated areas should continue monitoring the county's website for updates regarding this – or any future – amendments. Businesses might prefer waiting to review and revise policies and practices until the dust settles in Bernalillo County.