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November 4, 2019

San Antonio’s Paid Sick Leave Ordinance Amended

The City of San Antonio enacted a paid sick leave ordinance on August 16, 2018.  A group of San Antonio businesses brought forth a lawsuit against the City seeking an injunction against the ordinance.  As part of a compromise between the City and the business groups, a District Judge entered an order on July 24, 2019 to delay the implementation date of San Antonio’s ordinance from August 1, 2019 to December 1, 2019 (see our prior Benefit Beat articles from August, 2019July, 2019 and September, 2018). Following the court order, the City Council made further amendments to the ordinance, now known as the Sick and Safe Leave Ordinance. Below is a summary of the ordinance provisions, as amended.

Employers subject to the law

An employer is defined as any person, company, corporation, firm, partnership, labor organization, non-profit organization or association that 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, and entities with employees subject to the Railway Labor Act, are not subject to the ordinance.

Eligible employees

An eligible employee is one who works for pay within the City of San Antonio for an employer subject to the law, including those who work through a temporary or employment agency.  An employee who is typically based outside the geographical boundaries of the City of San Antonio for more than 50% of work hours in a year and works in the City on an occasional basis, is eligible for the benefit if he/she works more than 240 hours of work in the City within a year.  Independent contractors, and unpaid interns, are not eligible for the sick and safe leave benefit.

Accrual, Cap, Frontloading, and Carryover

Employees accrue at least one hour of sick and safe leave for every 30 hours worked in the City, up to 56 hours in a year.  Under the original ordinance, larger businesses were required to provide up to 64 hours of leave, while smaller businesses (5 or fewer employees) would have been required to provide up to 48 hours of leave.

Employees begin to accrue sick and safe leave on the date of hire, or December 1, 2019, whichever is later. Employers may require employees to wait up to 90 days before using accrued leave.  Under the original ordinance, the waiting period was capped at 60 days and only applied if the employer could establish that the employee’s term of employment was at least one year.

Unused accrued sick and safe leave must be carried over to the following year. Alternatively, an employer who provides 56 hours of sick and safe leave for immediate use at the beginning of each year is not required to provide carryover.

If an employee terminates employment and is rehired within six months of separation from the same employer, any previously accrued sick and safe leave that was not used must be reinstated and available for immediate use. An employer is not required to pay out the balance of sick leave upon separation from employment.  However, if an employer chooses to pay out the balance of sick and safe leave and the employee is rehired, the employer is not required to reinstate any sick and safe leave upon rehiring of the employee.

Use of leave

Earned sick and safe 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’s illness, injury, medical diagnosis or treatment, including preventative medical care.  Under the original ordinance, a family member only included a spouse, child, parent, or other individual related by blood or whose close association with the employee is the equivalent of a family relationship.  In accordance with the amended ordinance, a family member is defined as:
    • A spouse, domestic partner, or an opposite or same sex significant other;
    • Any family member within the second degree of consanguinity or affinity;
    • A member of the covered employee’s household; or
    • A minor’s parent, regardless of the sex or gender of either parent.

The amended ordinance clarifies that parenthood must be liberally construed to include legal parents, foster parents, a same-sex parent, a step-parent, individuals serving in loco parentis or other individuals deemed to be in a caretaker role.

  • 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 sick and safe leave as soon as possible prior to his/her scheduled work time. When the need for leave exceeds four consecutive work days, the employer may require reasonable documentation to substantiate the need for leave. Under the original ordinance, documentation was required after three consecutive days of absence.
  • 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. The Director of the San Antonio Metropolitan Health District is directed to develop, and make available on its website, a model workplace poster that can be used for this purpose.  In addition, an employer must include information about the sick and safe leave benefit in its employee handbook.  Employers are also required to provide, or make available, a monthly earned sick and safe leave time statement, either by paper or electronically, reflecting the usage and available amount of the employee's paid leave.

Record retention.  Employers are required to maintain records establishing the amount of sick and safe leave 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 and safe leave ordinance 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.

Prohibition of Retaliation.  An employer is generally prohibited from taking any adverse employment-related action or retaliation against employee’s right to use accrued paid sick leave.

Confidentiality Requirements.  Employers must keep medical information relating to domestic abuse, sexual assault or stalking of an employee or his her family member confidential.  Such information can only be disclosed upon the affected employee’s permission, by court or administrative order, or as otherwise required by federal or state law.

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, but penalties will not be assessed until April 1, 2020 except in cases of retaliation against an employee.

The San Antonio Metropolitan Health District maintains a dedicated website about the sick and safe leave ordinance that includes Employee FAQs, as well as Employer FAQs and a tracking spreadsheet tool.

 

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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