Background
A part-time fitness instructor requested earned sick leave for three classes scheduled the next morning and later requested sick leave for another class. eVOLV Strong approved and paid the leave requests, but marked each missed class as a “no-call no-show” on the instructor’s employment record.
After the second absence, eVOLV removed the instructor from all future sessions. The New Mexico Department of Workforce Solutions concluded that eVOLV violated the Healthy Workplaces Act and sued for damages, alleging that eVOLV unlawfully required the instructor to find a replacement and retaliated for her use of earned sick leave. The district court granted summary judgment to the Department.
The Court’s Holding
The Court of Appeals held that eVOLV was entitled to summary judgment on the claim under Section 50-17-3(F). That provision bars employers from making an employee’s search for or successful finding of a replacement a condition of taking earned sick leave. Because eVOLV approved and paid the instructor’s leave even though she had not found a replacement, the court concluded that leave and payment were not conditioned on finding one.
The court nevertheless held that summary judgment was improper on the retaliation claim. The undisputed facts established a prima facie case: eVOLV counted the instructor’s sick-leave absences against her and permanently removed her from the schedule. But factual disputes remained over whether eVOLV acted for a legitimate, nonretaliatory reason—noncompliance with its notice policy—or whether that stated reason was pretextual. The court reversed and remanded for trial on retaliation.
Key Takeaways
- Paying earned sick leave despite an employee’s failure to find a substitute does not violate Section 50-17-3(F).
- An employer may require notice of unforeseeable sick leave through specified oral or written methods, so long as the policy does not conflict with the Healthy Workplaces Act.
- Counting sick-leave absences against an employee and removing the employee from the schedule can support a prima facie retaliation claim.
Why It Matters
The decision distinguishes an unlawful replacement-worker condition from a lawful notice procedure. Employers may structure how workers notify them of absences, but cannot condition sick leave on securing coverage.
It also underscores that adverse scheduling decisions following sick-leave use may require a trial when the employer’s asserted operational justification and evidence of pretext are disputed.