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, 2019. 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 may want to review their current policies to ensure compliance with these ordinances, both of which will take effect for most employers on August 1, 2019. (Employers with five or fewer employees have until August 1, 2021, to comply.)
Below are answers to some frequently asked questions about these ordinances:
- 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 more than five employees. The ordinances require such employers to provide employees with up to 64 hours of paid sick leave per year. Sick leave accrues at a rate of 1 hour per every 30 hours worked. Employees are eligible for paid sick leave under these ordinances if they work 80 or more hours within the confines of the city of San Antonio or the city of Dallas in a year. 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, 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.
- Do the ordinances require paid sick leave for independent contractors?
No, but employers may want to verify that individuals are properly classified as independent contractors to ensure compliance with the ordinances.
- Do the ordinances require paid sick leave for part-time employees?
Yes, provided the employees perform at least 80 hours of work within the city of San Antonio or the city of Dallas in a year. Of course, part-time employees will accrue paid sick leave at a slower rate than full-time employees, since the ordinances provide for the accrual of 1 hour of paid sick leave for every 30 hours worked.
- If a company is not located in the city of San Antonio or the city of Dallas, but some of its employees work in either or both cities, does the company 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, certain 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 passing through the city limits—may be covered under the ordinances if they work within the city limits for the 80-hour period. Employers may want to carefully track this time to ensure compliance with the ordinances.
- What sort of changes might be made to current leave policies?
If an employer needs to amend its policies, it may want to do so prior to August 1, 2019. In these policies, employers can make clear that paid sick leave will begin to accrue as of that date. If an employer has an employee handbook, the ordinances require that the employer provide a statement of rights and remedies in the handbook. Employees can 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, employers could prepare a handbook addendum or memorandum to be distributed to impacted employees and new hires until a revised handbook is issued. Again, employers can include a copy of the applicable ordinance.
The ordinances also require the display of a sign in a conspicuous place where other notices to employees are customarily posted. Currently, there is no guidance regarding the required size, font, or formatting of the sign.
- Is a policy that provides that employees may not use accrued sick leave within the first 90 days of employment 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.
- Is a policy that assesses attendance points for each unscheduled absence (e.g., an absence without advanced notice or approval) and begins the progressive disciplinary process when a certain number of points are accrued, still permissible 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 are exhausted. Employers can 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 must employees give when using paid sick leave?
The ordinances contemplate a “timely” request by the employee “before their scheduled work 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 absent 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).
- 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 or her payroll stub that shows the balance of earned sick leave sufficient for compliance?
Yes, a payroll account showing the balance of earned sick leave would be sufficient for compliance with the ordinances.
- Is a paid time off (PTO) policy that does not distinguish between vacation time and sick time and provides a set amount of PTO for use, regardless of the reason, still permissible?
Yes, such a policy would be permissible if it meets the minimum requirements of the ordinances. The ordinances do not require employers with more generous PTO policies to provide additional earned paid sick time to their employees.
