Despite broad-based support, the Texas Legislature failed to pass a law preempting the type of paid sick leave ordinances enacted in Austin, San Antonio, and most recently, Dallas before the end of its regular session on May 27.  While a Texas court of appeal enjoined implementation of Austin’s paid sick leave ordinance and later ruled it unconstitutional, no litigation has been filed concerning the San Antonio and Dallas ordinances.  Accordingly, companies with employees in San Antonio and Dallas must prepare to comply with these ordinances, both of which take effect for most employers on August 1, 2019.  (Smaller employers with fewer than five employees have until August 1, 2021 to comply.)  Below are answers to some of your most frequently asked questions:

• What are an employer’s obligations under the new paid sick leave ordinances? 

As of August 1, 2019, the ordinances impose paid sick leave obligations on employers with 5 or more employees.  The ordinances require that employees be provided with up to 64 hours of paid sick leave per year.  Sick leave accrues at a rate of one hour per every 30 hours worked.  Employees are eligible if they work 80 or more hours within the confines of the city of San Antonio or the city of Dallas.  Paid sick leave can be used for the employee’s or the employee’s family member’s physical or mental illness or injury, preventative medical or health care, or health condition; or the employee’s or the employee’s family member’s need to seek medical attention or relocation, obtain the assistance 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.  Family member means an employee’s “spouse, child, parent, or any other individual related by blood, or any other individual whose close associate to an employee is the equivalent of a family relationship.”  The ordinances also prohibit retaliation against employees for exercising their rights under the ordinances. 

• Are there any major differences between the Dallas ordinance and the San Antonio ordinance? 

The Dallas ordinance permits the department designated by the City to implement, administer, and enforce the ordinance the power to issue investigatory subpoenas.  The San Antonio ordinance does not address subpoenas.  Otherwise, there are no differences. 

• Do the ordinances require paid sick leave for independent contractors? 

No, but it is important to ensure individuals are properly classified as independent contractors. 

• Do the ordinances require paid sick leave for part-time employees?

Yes, provided the employees work at least 80 hours of work within the city of San Antonio or the city of Dallas.  Of course, part-time employees will accrue paid sick leave at a slower rate than full-time employees, since the ordinance provides for the accrual of one hour of paid sick leave for every 30 hours worked.

• My company is not located in the city of San Antonio or the city of Dallas, but some of our employees work in either or both cities.  Do we need to comply with the ordinances? 

Yes, if the employees work at least 80 hours per year in the city limits.  There is no requirement that the employees work within the city limits on a full-time basis.  Therefore, employees such as repairmen or service workers who live outside the city limits but are dispatched into the city limits to perform work, truck drivers, or other drivers driving through the city limits may be covered under the ordinances if they work within the city limits for the 80-hour period.  Employers will need to track this time to ensure compliance with the ordinances. 

• What sort of changes need to be paid to our current leave policy?

Your current policy should be amended prior to August 1, 2019, and should make clear that paid sick leave will begin to accrue as of that date.  The ordinances require a statement of rights and remedies in the handbook, if the employer has one, but it would be sufficient to simply refer the employees to the applicable city ordinance and provide a copy of the ordinance. 

Recognizing that many employers revise handbooks on an annual basis, it is acceptable to prepare a handbook addendum or memorandum to be distributed to impacted employees and new hires until a revised handbook is issued.  Again, a copy of the applicable ordinance should be included.

The ordinances also require the display of a sign in a conspicuous place where other notices to employees are customarily posted.  As of current, there is no guidance regarding the required size, font, or formatting of the sign.

• Our policy currently provides that employees may not use accrued sick leave within the first 90 days of employment.  Is this still permissible?

No, unless the employer establishes that the employees’ term of employment is at least one year.  Such waiting periods – at least as it concerns the use of paid sick leave – are no longer permissible for employees working on an at-will basis.  

• Our policy currently assesses attendance points for each unscheduled absence (e.g., no advanced notice or approval), and when a certain number of points are accrued, we begin the progressive disciplinary process.  Are these types of policies still permitted given the anti-retaliation provisions of the ordinances?

The safest approach would be to modify the policy to allow for the assessment of attendance points only after the 64 hours of minimum paid sick leave is exhausted.  Of course, it is appropriate and recommended to maintain a call-in procedure for employees to follow, and the failure to follow such a procedure could be grounds for discipline assuming consistent enforcement of the policy.  

• What type of notice are employees required to give when using paid sick leave?

The ordinance contemplates a “timely” request by the employee “before their scheduled worked time.”  The ordinances also prohibit employers from preventing an employee’s use of paid sick time for unforeseen absences that otherwise meet the requirements for usage of paid sick leave.  Employers may verify the reason for the absence once an employee is absence for more than three consecutive work days, but even then, the employer cannot inquire as to specifics, e.g., the type of health condition at issue, or the nature of the domestic abuse, etc.

Below is some policy language to consider:

The employee must request to use earned sick time as soon as practicable, including the expected duration of the leave.  When the need for leave is foreseeable, the employee must provide at least ___ days or as early as practicable in advance of use of paid sick leave.  If the leave is unforeseeable, the employee must provide notice as soon as possible before the required start of the shift.

For paid leave of three or more consecutive days, the employee must provide reasonable certification that leave was taken for a covered purpose.  Leave will not be delayed, however, because certification has not been received. 

Sick time cannot be used as an excuse to be late for work unless time was taken for a covered purpose. 

• Is there a grace period for compliance?

Yes.  Penalties will not be assessed against employers for violation of the ordinances prior to April 1, 2020, except for violations of the ordinances’ anti-retaliation provisions.

• The ordinances require employers to notify employees on a monthly basis of each employee’s available earned sick leave, but the ordinances are not intended “to create a new requirement for certified payroll.”  Is an employee’s electronic access to his/her payroll stub, which shows the balance of earned sick leave sufficient for compliance?

Yes.

Tiffany Cox Stacy, Employment Attorney

SAHRMA President, 2019

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