Foley & Lardner LLPAustin, San Antonio and now Dallas have joined an ever-growing number of American cities passing paid sick leave ordinances.  Though Austin was the first to adopt such an ordinance, in November 2018 Texas’ Third Court of Appeals deemed the ordinance unconstitutional and enjoined it from taking effect.

The San Antonio and Dallas ordinances are modeled after the Austin ordinance but are not impacted by the current injunction.  Many believed that during the 2019 session, the Texas legislature would enact a law prohibiting local governments from dictating business policies, most specifically these type of sick leave laws.  However, the legislature did not fully decide that proposal before adjourning.

Thus, unless the courts take action, San Antonio and Dallas employers with more than five employees must comply with their city’s respective sick leave ordinances starting on August 1, 2019.  While the requirements go into effect in August, penalties won’t be assessed for violations until April 1, 2020 (except if there is a violation of the anti-retaliation provisions).

How The Ordinances Work:

Both ordinances apply to all employees, including temporary workers (but not independent contractors), who provide at least 80 hours of service in a year within their respective cities.  Eligible employees get one hour of paid sick leave for every 30 hours worked in their respective cities, accruing in one-hour increments, unless the employer has a policy that accrues it in fractions of an hour. 

There is a yearly accrual cap of 64 hours (48 hours for employers who have 15 or fewer employees) of paid sick leave.  Unless the employer frontloads the entire sick leave allowance, unused sick leave carries over, subject to the accrual cap.  Generally, employers cannot enforce waiting periods for sick leave (e.g., 90-day probationary periods), but may continue using PTO policies (which are inclusive of sick leave), provided that employees earn at least the minimum amounts required under the statute.

Employees must be allowed to use the mandated sick leave (or the employer’s all-inclusive PTO leave) for a variety of circumstances, including:

  • their own illnesses (physical or mental); 
  • the employee’s need to carry for a family member’s illness (physical or mental); or 
  • the employee’s or the employee’s family member’s need to seek medical attention, seek relocation, obtain the 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 includes an employee’s spouse, child, parent, any other individual related by blood, or any other individual whose close association to an employee is the equivalent of a family relationship.

Other Requirements: 

Employers can request "reasonable" verification of the need for leave but may not require an explanation of the nature of the illness, injury, or health condition.  Sick leave compensation must be at least equal to what the employee would have earned if he or she had actually worked (although not overtime, tips, or commissions).

Employers must provide employees an electronic or written statement showing the amount of paid sick leave that employees have available.  Employers must also inform employees about their rights and remedies and may eventually have to post a notice. The notice will be required only when the city provides an example, which neither Dallas nor San Antonio has yet done.  

Employer Considerations: 

Employers with employees within San Antonio and Dallas city limits should review their sick leave policies and procedures to ensure that they are able to comply with the respective ordinances by August 1, 2019.  

Employers with employees in Austin should continue to monitor the status of the injunction.