An appeals court in Texas has placed the City of Austin’s paid sick leave ordinance on hold.  At the same time, the City Council of San Antonio passed an Ordinance that will require private sector employers to provide paid sick leave to their employees. 

Austin

The City Council of Austin enacted the Earned Sick Time Ordinance on February 15, 2018 (for a summary of this law, see our prior Benefit Beat article).  The law requires private sector employers to provide paid sick leave to their employees beginning October 1, 2018.  For employers with 5 or fewer employees, the applicability date of the law is delayed until October 1, 2020. 

Following enactment of the Ordinance, a Texas business coalition challenged the mandate and sought a temporary injunction to block the effective date of the Ordinance; it was denied by a District Court.  The case was then brought before the Texas Third Circuit Court of Appeals.  On August 17, 2018, the appeals court granted motion for temporary relief, pending further litigation.  As the case continues to wind through the judicial process, the Austin paid sick leave Ordinance remains in limbo.

San Antonio

The City Council of San Antonio passed, and the Mayor signed, the Earned Paid Sick Time Ordinance on August 16, 2018.  The law requires private sector employers to provide paid sick leave to their employees beginning August 1, 2019.  For employers with 5 or fewer employees, the applicability date of the law is delayed until August 1, 2021. 

Employers subject to the law

An employer is defined as any person, company, corporation, firm, partnership, labor organization, non-profit organization or association who pays an employee to perform work for the employer, and exercises control over the employee’s wages, hours and working conditions.  Federal, state and local government employers are not subject to the ordinance.

Eligible employees

An eligible employee is one who performs at least 80 hours of work in a calendar year within the City of San Antonio for the employer subject to the law, including those who work through a temporary or employment agency. Independent contractors, and unpaid interns, are not eligible for the earned sick time benefit.

Amount of leave

Employees accrue at least one hour of sick leave for every 30 hours worked in the City.

Accrual, Cap, Frontloading, and Carryover

Employees begin to accrue earned sick time beginning on the later of the date of hire, or, August 1, 2019.  For employers with 5 or fewer employees, accrual begins August 1, 2021. Earned sick time can be used as soon as it is accrued.  An employer can delay usage for up to 60 days for employees expected to be employed for at least a year.  This 60-day delay cannot be imposed on temporary employees expected to work less than a year. 

The accrual cap and use of leave is contingent upon the employer size, as follows:

• Employers with 16 or more employees must allow employees to accrue, and use up to 64 hours of earned sick time per year;
• Employers with 15 or fewer employees must allow employees to accrue and use up to 48 hours of earned sick time per year.

Unused accrued earned sick time can be carried over to the next following year, subject to these 64 or 48 hour limits.  Alternatively, an employer who provides earned sick time for immediate use at the beginning of each year 64 (or 48 hours, as applicable) is not required to provide carryover, or additional accrual.

If an employee terminates employment and is rehired within six months of separation from the same employer, any previously accrued earned sick time that was not used must be reinstated and available for immediate use.

If an employer is bought, or the ownership changes hands, all employees of the original employer still employed by the successor employer are entitled to keep and use his/her accrued earned sick time.

Use of leave

Earned sick time can be taken for the following reasons:

• To attend to one’s own needs, or to attend to the needs of a family member’s illness, injury, medical diagnosis or treatment, including preventative medical care.  For this purpose, family member includes the employee's spouse, child, parent, or any other individual related by blood, or whose close association with the employee is the equivalent of a family relationship.
• To obtain services or care as a result of domestic violence, sexual assault, or stalking.

Notice Requirements

• Employee notice obligations.  An employee must request use of earned sick time as soon as possible prior to his/her scheduled work time.  When the need for leave exceeds three consecutive work days, the employer may require reasonable documentation to substantiate the need for leave.
• Employer workplace posting and notice obligations. Employers are required to display a poster describing the requirements of this Ordinance, in all appropriate languages of its employee population, in a conspicuous place where employee notices are customarily posted.   In addition, an employer must include information about the earned sick time benefit in its employee handbook. The Director of San Antonio’s Metropolitan Health District may create and make available on its website, a model workplace posting that can be used for this purpose.

In addition, employers are required to provide a monthly earned sick time statement, either by paper or electronically, reflecting the usage and available amount of the employee's earned sick time.

Record retention

Employers are required to maintain records establishing the amount of earned sick time accrued and used by each covered employee for three years.

Coordination with employer’s existing time off policy

An employer’s existing leave policy can satisfy the obligations of the City of San Antonio’s paid sick leave law as long it is at least as generous as the Ordinance requires.

Coordination with other laws

This law must be coordinated with other federal, state or local laws, where applicable.

Enforcement and Internet Resources

The City of San Antonio’s Metropolitan Health District enforces the provisions of this law, including complaints of violations and employment retaliation matters.  Violations of the Ordinance could result in civil penalties. 

Whether the San Antonio Ordinance ever takes effect remains to be seen. Some members of the Texas Legislature, which begins its next session in January 2019, have indicated that they will introduce legislation to bar local jurisdictions from passing these kinds of ordinances. The San Antonio Ordinance could also be impacted by the Austin litigation described above.