Is it just me, or did we blink and it’s already May?  Lingering in the back of our minds has been San Antonio’s paid sick leave ordinance, which is to become effective on August 1, 2019, for employers with more than five employees.  (The effective date is delayed until August 1, 2021, for employers with five or fewer employees.)  Many of us have taken a “wait-and-see” approach, as the Third Court of Appeals in Austin, Texas, entered a temporary injunction blocking the implementation of a very similar paid sick leave ordinance that the Austin City Council passed in February 2018, and Texas legislators are working to pass a bill that would prohibit these sorts of local ordinances.

In April 2019, Senate Bill 2485 passed the Texas State Senate. It has since been referred to the Texas House of Representatives. The bill has not been set for hearing, and the clock is ticking, as the state legislature’s regular session will end on May 27, 2019.  Accordingly, San Antonio-area employers may want to familiarize themselves with the ordinance and be prepared to take prompt action in advance of its effective date. Here is what employers need to know:

Eligible Employees

The ordinance applies to all employees who perform “at least 80 hours of work for pay within the City of San Antonio, Texas in a year for . . . employer[s] including work performed through the services of a temporary or employment agency.”

Covered Employers

All employers doing business in the city of San Antonio must provide the specified paid leave. The ordinance does not apply to federal, state, or local governmental entities.

Required Leave

Employers must grant employees one hour of earned paid sick leave for every 30 hours worked in the city of San Antonio. Sick leave accrues in one-hour increments. For employers with more than 15 employees, the yearly cap on earned sick leave is 64 hours. For employers with 15 or fewer employees, the yearly cap on earned sick leave is 48 hours. 

Carryover of Accrued but Unused Leave

Accrued but unused sick leave up to the yearly cap must be carried over to the following year. However, if an employer provides at least the yearly cap of earned sick leave available to an employee at the beginning of the year, no carryover is required.

Usage Requirements

An employee may use earned paid sick leave time as soon as it is accrued. An employer may restrict usage during an employee’s first 60 days of employment if “the employer establishes that the employee’s term of employment is at least one year.” An employer is not required to allow an employee sick leave time of more than eight days in a year.

Qualifying Conditions

Paid sick leave can be used in the following scenarios: 

• for an employee’s own “physical or mental illness or injury, preventative medical or health care or health condition”;
• when an employee is needed to “care for a family member’s physical or mental illness, preventative medical or health care, injury or health condition”; or
• for an employee’s or family member’s “need to seek medical attention, seek relocation, obtain services of a victim services organization or participate in legal or court ordered action related to an incident of victimization from domestic abuse, sexual assault or stalking involving the employee or the employee’s family member.”

The ordinance defines a “family member” as a spouse, child, parent, or “any other individual related by blood or whose close association with the employee is the equivalent of a family relationship.” 

Notification and Verification Requirements

Employers “may adopt reasonable verification procedures to establish that an employee’s request for earned paid sick time meets the requirements of [the ordinance] if the employee requests to use earned paid sick time for more than three (3) consecutive work days.” Sick leave shall be provided “if the employee has available earned paid sick time and makes a timely request for the use of earned paid sick time before their scheduled work time.” However, “an employer may not prevent an employee from using earned paid sick time for an unforeseen qualified absence.”

Employer Notice Requirements

On no less than a monthly basis, an employer must provide notice to each employee of the amount of the employee’s available earned paid sick time. To the extent the employer has a handbook, the handbook must contain a notice of employees’ rights and remedies under the ordinance.

Employers With More Generous Leave

Employers need not provide additional paid sick leave if they make paid time off available to employees on conditions that meet the purpose and requirements of the ordinance. Further, an employer does not have to provide additional earned paid sick time to an employee if the employee has used paid time off that meets the requirements of the ordinance for purposes not specified under the ordinance.

Non-retaliation

The ordinance prohibits retaliation against an employee because the employee “requests or uses earned paid sick time, reports or attempts to report a violation of [the ordinance], participates or attempts to participate in an investigation or proceeding under [the ordinance], or otherwise exercises any rights afforded by [the ordinance].”

Enforcement

San Antonio’s health department, the San Antonio Metropolitan Health District, is responsible for enforcing the ordinance. The Director of the health department may create signage explaining the requirements of the ordinance that an employer must display. The Director is authorized to interpret and enforce the ordinance and develop policies to clarify and administer it.

Complaint Procedure

An employee may file a complaint with the health department, which may investigate the complaint. An employee alleging a violation of the ordinance must file a complaint with the health department “within two (2) years from the date of the violation.” An employer is required to provide relevant information and testimony when requested by the health department in connection with a complaint.

Penalties

The health department may impose a penalty of $500 per violation of the ordinance. “If the Department finds after investigation of a timely complaint that a violation of [the ordinance] has occurred, an employer shall receive written notice of the violation and the civil penalty assessed, if any . . . . The Department may seek voluntary compliance from the employer to remedy [a] violation of [the ordinance] before collecting [a] civil penalty.” If the employer does not voluntarily comply within 10 business days following the receipt of a violation notice, the employer shall be liable for the assessed civil penalty. Penalties cannot be assessed until after April 1, 2020, except for violations of the retaliation provisions. The ordinance does not create a criminal offense.

Should Senate Bill 2485 fail to pass in the Texas House of Representatives this legislative session, we will work to provide additional guidance for our members to utilize in preparing to comply with the ordinance.

Tiffany Cox Stacy, Employment Attorney

SAHRMA President, 2019

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