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San Antonio, Texas Enacts Paid Sick Leave Law … But Will It Live to Go Into Effect?

By Evandro Gigante and Laura Fant on August 22, 2018 Posted in Leaves of Absences, Workplace Policies and Procedures

San Antonio, Texas has become the latest jurisdiction to enact a law providing eligible employees with paid leave for their own medical needs, those of family members, and for other covered reasons.  The new Ordinance is scheduled to take effect on August 1, 2019 for employers with more than five employees, and on August 1, 2021 for employers with five or fewer employees.

Employee Eligibility

All private employers doing business in San Antonio will be required to provide paid sick leave (the Ordinance does not apply to federal, state, or local governmental entities).  The Ordinance will require paid sick leave for all employees who work at least 80 hours per year within the City of San Antonio, including work performed through the services of a temporary or employment agency.  An employer may restrict or prohibit usage of paid sick leave 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.”  Therefore, an employee who is hired to work for a designated period of less than one year (for example, a temporary or contract employee) would be permitted to begin using accrued paid sick leave immediately upon the start of employment.

Accrual of Paid Sick Leave

Covered employees will be entitled to accrue one hour of paid sick leave for every 30 hours worked within the city.  Employers with more than 15 employees may establish a yearly accrual cap of 64 hours, while employers with 15 or fewer employees may establish a yearly accrual cap of 48 hours.  In all cases, an employer is not required to allow an employee to use paid sick leave on more than eight (8) days in a given year.  Accrued but unused sick leave up to the yearly cap must be carried over to the following year.

Alternatively, employers have the option to provide at least the applicable yearly cap of paid sick leave to employees at the beginning of each calendar year.  Employers utilizing such a “front loading” method will avoid the need to calculate accrual and also need not allow for carryover of unused time into the following year.

An employer that currently offers its employees paid time off that is equal to or greater than that required by the Ordinance, and that can be used for the same purposes and under the same conditions as provided by the Ordinance, may use such time to satisfy its obligations under the Ordinance and need not provide additional paid sick leave time.

Covered Uses for Paid Sick Leave

Paid sick leave may be used for any one or a combination of the following covered reasons:

  • the employee’s physical or mental illness or injury, preventative medical or health care or health condition;
  • 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
  • the employee’s or their 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.

A “family member” is defined as an employee’s spouse, child, parent or any other individual related by blood or whose close association with the employee is the equivalent of a family relationship.

Employee Notice and Documentation Requirements

Employees may be required to make a “timely request” to use paid sick leave in advance of their schedule work time, but an employer “may not prevent an employee from using earned paid sick time for an unforeseen qualified absence.”

Employers may adopt “reasonable verification procedures” for absences of more than three consecutive days to establish that the need for sick leave meets the requirements of the Ordinance.  Any such verification procedure may not require an employee to explain the nature of a health condition, domestic abuse, sexual assault, or stalking situation.

Employer Notice and Recordkeeping Requirements

Employers will be required to maintain records showing the amount of paid sick leave accrued and used by each employee.  Employers further will be required, on no less than a monthly basis, to provide employees with a statement (either electronically or in writing) showing the amount of the employee’s available earned paid sick leave.

Employers that maintain an employee handbook will be required to include a notice of employee rights and remedies under the Ordinance in the handbook.  Employers will also be required to post a notice setting forth the requirements of the Ordinance in a conspicuous place if such a notice is promulgated by the Director of the San Antonio Metropolitan Health District.

Legal Challenges to Paid Sick Leave Laws in Texas

Despite the enactment of the new Ordinance, questions remain as to whether or not it will ultimately take effect.  Just one day after the San Antonio City Council voted to enact the Ordinance, a Texas state appellate court issued an order temporarily enjoining the city of Austin’s paid sick leave law from taking effect pending the outcome of an appeal stemming from a challenge to the legality of the city ordinance under state law.  The Austin ordinance was slated to take effect on October 1, 2018.

And while that legal challenge winds its way through the courts, a number of Texas state representatives have announced plans to introduce a law that would expressly prohibit local governments from enacting paid sick leave laws.  The state legislature next reconvenes on January 8, 2019, so it remains to be seen what the future may hold for both the San Antonio and Austin paid sick leave laws.

 

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