Central Texas Mandatory Paid Sick Leave Update

San Antonio Adopts Mandatory Paid Sick Leave Ordinance
Austin Paid Sick Leave Ordinance Stayed By Court Of Appeals

The status of mandatory paid sick leave in the region had two major developments within two days.  These developments create more uncertainty, and potentially a greater burden on companies with employees in Austin and San Antonio.

On August 16, 2018, the San Antonio City Council adopted a mandatory paid sick leave ordinance for employers that have employees working within the City of San Antonio, regardless of where the company is located.  The San Antonio ordinance is substantially similar to the Austin Paid Sick Leave Ordinance in all material respects and is set to go into effect in August 2019.

The next day, August 17, 2018, the status of the Austin ordinance was significantly changed.  The Texas Third Court of Appeals granted Plaintiffs’ motion to stay the Austin Paid Sick Leave Ordinance during the pendency of the appeal in the lawsuit challenging it, meaning that an October 1, 2018, effective date is no longer certain.

San Antonio Mandatory Paid Sick Leave Ordinance:

San Antonio became the second major Texas city to pass a mandatory paid sick leave ordinance.  The San Antonio ordinance follows the Austin model very closely.  The text of the San Antonio ordinance can be found here.

Under the San Antonio ordinance, covered employees must accrue sick leave at the rate of one hour for every 30 hours worked, up to 64 hours annually, or 48 hours annually for employers with 15 or fewer employees.  Unused sick time is carried over to the following year, subject to the yearly caps of 64 or 48 hours.  An employer that operates or is headquartered outside the San Antonio city limits must still offer sick leave to its employees that perform work in San Antonio.   Employers must provide sick leave to any employee who works at least 80 hours within a calendar year in the San Antonio city limits.  These requirements are the same as those found in the Austin ordinance.

Employees may use paid sick leave for more than just being sick.  Just as with the Austin ordinance, leave may be used for the employee’s or a family member’s illness, injury, health condition or preventive care, or as necessary to deal with domestic abuse, sexual assault, or stalking involving the employee or a family member.  Employers who make paid time off (PTO) available to employees under conditions that meet the requirements of the ordinance are not required to provide additional sick leave to the employee.

Administrative requirements exist under both ordinances.  Employer handbooks must contain a written policy and notice of rights under the ordinance.  Workplace posters must be displayed.  Employers must provide a statement showing available leave on at least a monthly basis.

The same land mines found in the Austin ordinance can also be found in the San Antonio ordinance.  For example, if an employee returns to work for the same employer in a six-month period, the employee may use previously earned sick time.  Further, an employer may delay an employee’s sick time for the first 60 days of employment only if the employer establishes the employee’s term of employment will be at least one year.

Austin Ordinance Lawsuit Update:

On August 17, 2018, the Texas Third Court of Appeals granted Plaintiffs’ motion to stay the ordinance during the pendency of the appeal.  Plaintiffs filed an appeal of the district court’s ruling denying a temporary injunction in the lawsuit claiming the paid sick leave ordinance violates the Texas Constitution and is preempted by state minimum wage law. A further description of the lawsuit can be found here.  In staying the ordinance, the Court of Appeals stated that “enjoining the ordinance is necessary to preserve the parties’ rights until disposition of the appeal.”  The Court therefore granted the motions for emergency relief and ordered the Austin ordinance be enjoined from taking effect while the appeal is pending.

The stay means the appeal will determine when and if the Austin ordinance will go into effect.  Although briefing deadlines in the appeal come before the original implementation date of October 1, 2018, it is unlikely the Court of Appeals will hear and rule upon the issues before that day.  Crazier things have happened however, and employers need to be equipped to implement changes to payroll practices at a moment’s notice to comply with the Austin ordinance.

What Employers Need To Do:

October 1, 2018, is no longer set in stone as the start date, and thus employers should prepare, but not implement changes to comply with the Austin ordinance.  Regardless of the current legal and legislative battles, mandatory sick leave will be here in Texas – someday.  Indeed, mandatory paid sick leave is quickly becoming a reality in many major cities and many states including Arizona, Connecticut, California, Massachusetts, Oregon, Vermont, and Washington have enacted paid sick leave laws.

Employers would be prudent to prepare for current, as well future, obligations.  The employment law team at Cokinos | Young can provide effective, common sense assistance to prepare Texas employers in this ever-changing environment.  Employers should work with legal counsel to find practical solutions for compliance and transition to lessen the impact of changes on operations, employee morale, and budgeting.  Employers should audit handbook policies, PTO and vacation policies, verification procedures, and payroll systems to determine how to prepare for the Austin and San Antonio ordinances going into effect.

As always, current policies should be updated for compliance with the FLSA, FMLA, and related statutes.  Even without the enactment of mandatory sick leave laws, there are many legal compliance issues related to time off and leave, and Central Texas employees are now educated and keyed-in on their rights more than ever.  An employer that is not in compliance with pay and leave requirements is playing a dangerous game in today’s landscape.

Look for more updates on the Austin lawsuit and the status of both ordinances.  Interim rules issued by Austin, San Antonio, or the Courts may change or clarify employer obligations.  Contact Cokinos | Young for the latest.

 

Wilson Stoker is an employment law counselor with Cokinos | Young, who is Board Certified in Labor and Employment Law by the Texas Board of Legal Specialization. Wilson helps businesses navigate employment law issues related to on hiring, promotion, discipline and termination by providing common-sense, proactive solutions.  Wilson has particular experience defending employers in lawsuits and agency investigations involving discrimination, harassment, retaliation, wage and hour and leaves of absence.  View bio.