Sick and Tired of being Sick and Tired? Your employer will have to pay you for it in San Antonio and Dallas.

The Texas Legislature failed to pass legislation in the current session that would have stopped implementation of the San Antonio and Dallas Paid Sick Leave ordinances set to take effect on August 1, 2019 for most employers in those cities.  With the Austin ordinance languishing in the Courts, there will be no reprieve for San Antonio and Dallas employers that will prevent them from having to comply with the Ordinances.  Here is what employers need to know.  The Ordinances are essentially identical.

To what employers do the ordinances apply?

All employers.  Depending on the size of the employer, the effective date and sick leave required to be accrued differs.

What is the effective date?

For employers with more than 5 employees during the preceding 12 months, August 1, 2019.  For employers with fewer than 5 employees during the preceding 12 months, August 1, 2021.

How much time are employers required to permit?

Employees will earn 1 paid sick leave hour for every 30 worked.

The yearly caps are as follows:

  • Employers with 15 or more employees in preceding 12 months, excluding family members, 64 hours.
  • Employers with fewer than 15 employees in preceding 12 months, 48 hours.
  • Employers may postpone accrual during the employee’s first 60 days of employment, but only if the employer establishes that the term of employment is at least a year.
  • Accrued leave carries over to the following year, but employers are not required to carry over accrued time if the employer provides the maximum amount of paid sick leave required at the beginning of the year.
  • Employees rehired within 6 months retain the paid sick leave available to them at the time of separation.

Who may use paid sick leave and for what?

An employee may use paid sick leave for their own personal health or other issues, or that of a family member.

A family member means 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.

Permitted uses:

  1. The employee’s physical or mental illness or injury, preventative medical or health care or health condition; or
  2. 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
  3. 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.

What are permissible limitations for employers?

An employer may set up a verification process for employees who seek paid sick leave for 3 or more consecutive days but may not require the employee to explain the nature of the request.

An employer may not be required to permit an employee to use more than 8 days per year of paid sick leave.

Employers may require a timely request for paid sick leave but may not prevent an employee from using paid sick time for unforeseeable emergencies.

What are prohibited actions by employers and the penalties?

An employer cannot require employee to find replacement for requested paid sick leave but may allow employees to voluntarily do so or provide incentives for those who do.

Employers may not retaliate against an employee who uses paid sick leave.

Employers who are reported and found to be in violation of the ordinances may be fined up to $500 per violation.

What are the employer’s notice and record-keeping requirements?

Employers must provide monthly statement of available paid sick leave available to each employee.

Employers must include notice in handbook of the employee’s rights and remedies.

Employers must post the required legal notice in an area where it will be able to be viewed by employee.

Employers must preserve records of accrued and used paid sick leave for three years.

What do employers need to do right now?

  • Review employee contracts and handbook practices to ensure compliance with statute.  For employers who use PTO instead of defined sick leave and vacation, you will need to segregate your paid sick leave from your PTO policy to track compliance.  Revise contracts and handbooks as necessary.
  • Though the ordinances do not apply to independent contractors, employers should by no means try to classify new employees as independent contractors to avoid either required compliance or provision of leave.  The potential liabilities for compliance in other areas would be far more costly.
  • Consider a verification process for leave requested in excess of three days to include a third-party verification that does not invade the ordinances’ prohibition against reasons for the request.  Implement process by amending policies, handbooks, and forms.