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December 3, 2018

Paid Sick Leave Updates in Texas and New York (article)

The Appeals Court in Texas has deemed the City of Austin’s paid sick leave unconstitutional.  Legislation has also been introduced to prohibit any city or county within the state of Texas from doing so in the future.  Whether this bill becomes law could also impact a similar paid sick leave ordinance in San Antonio.  In the meantime, the County of Westchester in New York enacted an earned sick leave ordinance, which resembles the paid sick leave law currently in force in New York City.

Troubles in Texas

As follow-up to our September Benefit Beat article discussing the court proceedings surrounding Austin’s Earned Sick Time Ordinance, the Texas Third Circuit Court of Appeals has rendered its decision and deemed the City’s Ordinance to be unconstitutional.  As background, Austin’s City Council passed an earned sick leave ordinance earlier this year, and was to take effect on October 1, 2018 for certain-sized private sector employers.  A Texas business coalition challenged the mandate, and a decision on the matter has now been rendered by the appeals court.  In summary, the ordinance is deemed to be unconstitutional because it is preempted by the Texas Minimum Wage Act, and violates the Texas Constitution’s due-course-of-law, equal protection, association, and warrantless search clauses.   The appeals court granted both temporary and permanent injunctions prohibiting the City from enforcing the ordinance.

Then, on November 12, 2018, a bill (H. B. 222) was introduced in the Texas Legislature that would prohibit municipalities within the state from enacting paid sick leave laws or ordinances.  If this bill is enacted, it would take effect on September 1, 2019.   Another domino effect resulting from enacting this bill would be the potential impact on San Antonio’s paid sick leave ordinance, which is set to take effect on August 1, 2019.

Westchester County - Earned Sick Leave Law

The County of Westchester, New York enacted an “Earned Sick Leave Law” (Local Law No. 6-2018) on October 12, 2018.  This law, which takes effect April 10, 2019, requires employers in Westchester County to provide up to 40 hours of earned sick leave to their employees.

Employers subject to the law.  Employer is defined as any person, corporation, limited liability company, or association employing any individual in any occupation, industry, trade, business or service, including Westchester County government.

Eligible Employee.  An eligible employee is one who works more than 80 hours a calendar year in Westchester County on a full-time or part-time basis, including work performed in subsidized private sector and not-for-profit employment programs, a work experience program, a work study program, or for work compensated by or through qualified scholarships. Employee includes a domestic worker who works in Westchester County for more than 80 hours in a calendar year on a full or part-time basis.

Type of Leave.  Whether the earned sick leave is paid or unpaid is contingent upon employer size, as follows:

  • Employers employing five or more employees as well as an employer employing at least one domestic worker must provide paid sick leave.
  • Employers with four or fewer employees must provide unpaid sick leave.

Amount of Leave.  An eligible employee is entitled to accrue one hour of sick leave for every 30 hours worked, up to 40 hours of sick leave per year. Domestic workers accrue one hour of sick leave for every seven days worked in addition to the one day of rest as provided for by NY Labor law, up to a maximum of 40 hours of sick leave per year.

Accrual, Frontloading, Cap and Carryover of Leave.  Employees begin to accrue sick leave at the commencement of employment or 90 days after the law takes effect, whichever is later. An employee may begin to use sick leave after 90 days of employment.

An employer can front-load 40 hours of paid sick leave per calendar year or year as designated by employer (i.e. anniversary date). An employee may use up to 40 hours of sick leave per calendar year unless the employer provides a higher amount. Calendar year means from January 1 to December 1 in any given year.

Sick leave carries over from year-to-year, but remains subject to the 40-hour per year limit.

Accrued and unused sick leave need not be paid out upon termination of employment. If there is separation from employment and the employee is rehired in 9 months by the same employer, all earned unused sick leave must be reinstated.

Use of Sick Leave.  Leave can be taken for the following reasons:

  • To attend to one’s own needs, or to attend to the needs of a family member, for the diagnosis or treatment of a physical or mental condition, including preventive care services. For this purpose, family member includes:
    • The employee's biological, adopted or foster child (regardless of age), legal ward, child of the employee standing in loco parentis or grandchild;
    • A legally married spouse or registered domestic partner;
    • A parent, a legal guardian of the employee, a person who stood in loco parentis when the employee was a minor child; or a grandparent;
    • The child or parent of his/her spouse or domestic partner;
    • A sibling (half, adopted, or step); or
    • A household member.
  • Due to a closure of the employee’s worksite, or closure of his/her child’s school or childcare provider as a result of a declared public health emergency.

Notice Requirements

  • Employee notice obligations.  An employee may request sick leave orally, in writing, electronically, or by any other means acceptable to the employer. The request must include the expected duration of the absence. For a foreseeable request, the employee must make a good faith effort to provide advance notice and schedule the absence in a manner that does not unduly disrupt the operations of the employer. For absences of more than three consecutive days, an employer may require reasonable documentation for the use of sick leave.

An employer who requires its employees to provide notification of the intent to use paid sick leave must provide its workforce with a written policy outlining such notification procedures.  An employer cannot deny a sick leave request if it fails to provide a written policy to employees.

  • Employer notice obligations. Employers must provide written notice of the law to employees at the commencement of employment, or within 90 days of the effective date of the law, whichever is later.

Record Retention.  Employers must retain records clearly documenting the hours worked by employees and sick leave accrued and taken by employees for a period of three years.

Coordination with other laws.  This law must be coordinated with other federal, state and local laws, where applicable.  This law contains a reverse preemption clause, i.e., if a statewide or federal law goes into effect providing the same or similar benefits as required by this Ordinance, then Westchester County’s Earned Sick Leave law will become null and void.

Enforcement Agency and Internet Resources.  The Westchester County Department of Weights and Measures, Consumer Protection agency is charged with enforcing the provision of this law.

In closing, as has been the case with other earned sick leave laws and ordinances enacted over the years, there are many unanswered questions that will need to be resolved with future guidance. Affected employers will want to monitor the Westchester County Department’s website for further developments.

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The information contained in this article is provided as general guidance and may be affected by changes in law or regulation. This article is not intended to replace or substitute for accounting or other professional advice. Please consult a CBIZ professional. This information is provided as-is with no warranties of any kind. CBIZ shall not be liable for any damages whatsoever in connection with its use and assumes no obligation to inform the reader of any changes in laws or other factors that could affect the information contained herein.

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