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Annette Idalski, National Chair, Labor & Employment
Peter Hall, Shareholder
Diana Perez Gomez, Shareholder
Larry Carbo, Shareholder
Kellen Scott, Senior Counsel
Julie Offerman, Senior Associate
Brian Smith, Associate
Kyle Winnick, Associate
Chamberlain Hrdlicka Blawgs
Employers with employees who work in San Antonio or Dallas should be prepared for the earned paid sick leave ordinances that are set to take effect for most employers on August 1, 2019. Barring a court enjoining the ordinances from taking effect, employers soon must begin allowing employees who perform at least eighty hours of work for pay in the cities in a year to accrue paid sick leave.
Last year, the City of Austin led the way in Texas by requiring private employers to provide employees with paid sick leave. Shortly thereafter, Texas legislators promised to pass a bill that would outlaw local municipalities from enacting paid sick leave laws. Since then, San Antonio and Dallas passed similar ordinances, and the Austin court of appeals temporarily enjoined Austin’s law from taking effect. The City of Austin has asked the Texas Supreme Court to consider the issue, but the state’s high court has not decided whether it will weigh in. The state’s biennial legislative session recently ended without producing a bill to preempt the surge in local paid sick leave laws. And with San Antonio’s and Dallas’s ordinances set to take effect for most private employers on August 1, 2019, employers need to be aware of these new requirements.
San Antonio’s and Dallas’s ordinances are similar in most material respects. The ordinances require private employers to provide paid sick time when employees need to miss work due to a medical, mental health, or personal safety reason. Employers must give employees one hour of earned paid sick time for every thirty hours the employee works in San Antonio or Dallas. This benefit accrues regardless of where the employer is located.
Employees are allowed to accrue at least sixty-four hours per year of earned paid sick time. Employers with no more than fifteen employees at any time in the prior twelve months are considered small employers and only are required to allow employees to accrue forty-eight hours per year. Moreover, employers must permit employees to carry over all available paid sick time up to the annual cap.
Employees may use earned paid sick time for an absence from the employee’s work time that is caused by: (i) the employee’s physical or mental illness or injury, preventative medical or health care, or health condition; (ii) the employee’s need to care for a family member’s physical or mental illness, preventative medical or health care, injury, or health condition; or (iii) the employee’s or his or her family member’s need to seek medical attention, seek relocation, obtain services of a victim services organization, or participate in a legal or court ordered action related to an incident of victimization of domestic abuse, sexual assault, or stalking involving the employee or the employee’s family member.
Special rules apply to certain rehires and companies who acquire businesses and hire some of their employees. Employers also cannot require employees to find coverage for their absence as a condition of using earned paid sick time.
Additionally, employers must notify employees at least monthly of the amount of paid sick time the employees have earned. Employers with employee handbooks must include the employees’ rights and remedies under the ordinances in the handbook. When the applicable administrative agency creates approved signage, employers are required to display the sign or poster where other notices are customarily posted. Employers also should be sure to maintain records evidencing the amount of earned paid sick time each employee accrues and uses.
The ordinances become effective on August 1, 2019, except very small employers who have had no more than five employees at any time during the prior twelve months must comply by August 1, 2021. The San Antonio Metropolitan Health District and Dallas’s City Manager’s designee are charged with enforcing the ordinances. The administrative agencies are to seek voluntary compliance first but may impose civil fines on employers that do not exceed $500.00 per violation. Employers may be penalized immediately for retaliating against employees for exercising their rights under the ordinances. But no other monetary penalties should be assessed until April 1, 2020.
San Antonio and Dallas modeled their ordinances after Austin’s ordinance, and the Austin court of appeals has prevented Austin’s ordinance from taking effect by finding the Texas Minimum Wage Act preempts local regulations like Austin’s ordinance because it establishes a wage. Therefore, the same business groups and the State of Texas who challenged Austin’s law may initiate legal proceedings to halt San Antonio’s and Dallas’s ordinances from taking effect. Nevertheless, employers should be aware that, absent a successful challenge, the laws are set to take effect later this summer. Employers should review and perhaps modify their leave of absence policies and practices and handbooks to ensure they comply with the various paid leave laws that have proliferated around the country and within the State of Texas.