December 4, 2019

Paid Sick Leave Updates in San Antonio and Duluth

San Antonio Ordinance Delayed by Court Order

Practically on the eve of its effective date, the San Antonio paid sick and safe leave ordinance is stayed.  On November 22, 2019, Bexar County Judge Peter Sakai imposed a temporary injunction on the ordinance, which was to take effect December 1, 2019.  For background relating to this ordinance, see our prior Benefit Beat articles from November, 2019August, 2019July, 2019 and September, 2018).

Employers will want to review where they are in the process of establishing policies that would be compliant with the ordinance. Employers may want to work with legal counsel to determine whether they can suspend their efforts or whether it would be most prudent to proceed.

As a reminder, two other cities in Texas, namely, Austin and Dallas, have enacted paid sick leave ordinances. The Austin Ordinance was stayed by injunction entered on August 17, 2018 and is proceeding to the Texas Supreme Court. The Dallas Ordinance, despite challenges, took effect August 1, 2019, but penalties for failure to comply, generally, will not be imposed until April 1, 2020.

Updates to Duluth’s Earned Sick and Safe Time Ordinance

The City of Duluth adopted an Earned Sick and Safe Time (ESST) Ordinance in May of 2018 that takes effect January 1, 2020 (see City of Duluth Enacts Earned Sick and Safe Time law, Benefit Beat, 6/7/18).  With the effective date approaching, the City of Duluth has released final rules and updated FAQs

Covered employers

The law applies to employers employing 5 or more employees without regard to where the employer is located.  The law does not apply to state and local governments with the exception of the City of Duluth.

Covered employee

A covered employee is a full or part-time individual who works within the geographic boundaries of the city for more than fifty percent of his/her working time in a twelve month period or is based in the city of Duluth and spends a substantial part of his/her time working in the city and does not spend more than fifty percent of his/her work-time in a twelve month period in any other particular place.  Independent contractors, student interns, seasonal employees and individuals covered by the federal Railroad Unemployment Insurance Act are not eligible for the benefit.

Accrual, Frontloading and Carryover

Employees earn one hour of earned sick and safe time for every 50 hours worked.  Employees begin to accrue ESST on January 1, 2020.  Individuals hired after January 1, 2020 begin to accrue ESST on his/her date of hire.  An employee can begin using accrued ESST following 90 calendar days of employment.

Employees are entitled to accrue up to 64 hours of ESST per year.  Accrued ESST carries over from year-to-year, subject to a 40-hour per year limit.  Alternatively, an employer can frontload 40 hours of ESST at the beginning of each year.  An employer that frontloads ESST does not have allow for carry over.

An employer may, with the written consent of an employee, provide compensation to an employee for accrued but unused ESST instead of carrying over ESST into the following year.

Use of leave

ESST can be used by employees in order to care for themselves or a family member in situations involving illnesses, injuries, physical or mental health conditions, domestic violence, sexual assault, or stalking.

For this purpose, family member means an employee’s:

  • Child, adopted child, adult child, foster child, legal ward, step child, or child for whom the employee is a legal guardian;
  • Spouse or domestic partner;
  • Sibling, stepsibling, or foster sibling;
  • Parent, stepparent, mother-in-law, father-in-law;
  • Grandchild, foster grandchild, grandparent, step-grandparent; or
  • Any other individual related by blood or whose close association with the employee is the equivalent of a family relationship.

Coordination with employer’s existing policy

An employer who has a paid time off (PTO) policy that meets or exceeds the minimum requirements of the Earned Sick and Safe Time Ordinance will be considered compliant with the Ordinance.  If an employee has used all available time off for non-Ordinance reasons, the employer is not obligated to provide additional leave.

Collective bargaining agreements entered into prior to January 1, 2020 are deemed compliant.  Collective bargaining agreements entered into on or after January 1, 2020 will need to have a substantially equivalent paid-leave policy.

Notice Requirements

Employee notification obligations. The employer may require the employee to follow its usual and customary notice and procedures for absences. If the need for leave is unforeseeable, the employee must provide notice as soon as is practicable.  When the leave of absence exceeds three consecutive days, the employer may require reasonable documentation to substantiate the need for leave.

Employer notice obligations. Employers are required to notify their employees of their rights and protections under the Ordinance.  Employers must post the notice in a conspicuous place where employees can reasonably be expected to see it.  The City Clerk has prepared a workplace notice for an employer’s use. 

Record Retention

An employer must keep records documenting the total number of hours worked by each employee, the number of ESST hours accrued by each employee, and the number of ESST hours used by each employee for a period of three years.

An employer providing a PTO policy that meets the minimum requirements of the Ordinance, is not required to maintain records showing employee reasons for using PTO, only that the PTO was used and how much was used.

Enforcement and Internet Resources

The City Clerk is authorized to enforce the provisions of this Ordinance.  Penalties for employer violations begin at $200 per violation and are cumulative.

Additional information relating to the Ordinance including FAQs, employer resources, tracking tools and checklists are available on the City Clerk’s website.  

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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