If you get injured at work and need time off for your injury, you are entitled to workers’ compensation benefits that compensate you for most of your lost wages.<\/p>\n
What if the legislature passes the bill to provide paid family and medical leave? Can you take paid family and medical leave (PFML) at the same time as workers\u2019 comp? Surely you are not entitled to both. Are you?<\/p>\n
Two bills proposing PFML are at the Roundhouse right now: HB 6 and HB 11, though HB11 is tabled and only HB6 is moving forward. Both bills say something about being ineligible for PFML if you are entitled to workers’ comp benefits.<\/p>\n
But the language is not clear enough to be reliable.<\/p>\n
One challenge of writing legislation is that whatever the bill is intended to achieve, in the future somebody probably will try to find a loophole and get around it. The tedious task of bill drafters is to anticipate loopholes and prevent them in advance. The job of legislators, especially in the committee process, is to examine bills and try to find anything the drafters missed. When bills are passed with loopholes in place, somebody eventually will try to take advantage. Then the new law will not work the way it was intended, and the confusion will be resolved slowly, painfully and expensively in the courts.<\/p>\n
Most New Mexico legislators barely know workers’ comp exists. The only people who understand workers\u2019 comp are the people who work in the field every day.<\/p>\n
So it was concerning that the Workers’ Compensation Administration did not provide input to the analysis of either HB6 or HB11. Both bills have Fiscal Impact Reports, the standard analysis written primarily by the staff of the Legislative Finance Committee, with comments submitted by several state agencies.<\/p>\n
At a recent meeting of the Workers’ Compensation Advisory Council, the WCA general counsel said he did not submit a report on the legislation because one had not been requested. But a few important things are missing from this legislation that a workers\u2019 comp expert might have noticed.<\/p>\n
The bill should establish clearly that if a person has been injured at work, workers’ comp takes precedence and the person should seek those benefits rather than PFML. HB11 does better at clarifying that than HB6.<\/p>\n
The PFML proposed legislation provides leave for a person who has a serious health condition, but it doesn\u2019t provide anything else \u2013 specifically, it does not provide medical care. Under the current draft language, the leave would be limited to 12 weeks. In workers’ comp, medical care is an automatic part of the package and payment for time off can last for as long as 700 weeks (though it is based on the person\u2019s recovery and is usually much shorter). That\u2019s one of many reasons workers’ comp is preferable to PFML.<\/p>\n
The bill should clarify what happens if a person claims workers’ comp benefits, but those benefits are delayed due to a dispute about the claim. Can that person claim PFML while the dispute is pending?<\/p>\n
On that question I am not suggesting a proposed solution but just pointing out the issue: legislators should decide how those cases should be handled and add clear language to the bill.<\/p>\n
Bills on complex topics often take a few years to get through the legislative process. They have to be studied and studied again before they are ready to become law.<\/p>\n
This little analysis of one bill may help to show why it\u2019s time to modernize the legislature so legislators have more time and staff assistance to study the issues. Bills to do some of that modernization are being considered, and they deserve plenty of attention.<\/p>\n
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