Executive Summary: As we have mentioned in our previous Legal Alert, the effective date of San Antonio’s paid sick leave ordinance was delayed until December 1, 2019, by agreement after a lawsuit was filed against the city. At the time, the city indicated that one of the reasons for this agreed delay was so that the city could revise the ordinance. Earlier this month, San Antonio’s City Council passed the now-called Sick and Safe Leave Benefits ordinance which, barring any legal action or a decision from the Texas Supreme Court, will go into effect December 1, 2019. Some key changes include:
- The effective date is now the same for all sized employers.
- Employees based outside of San Antonio who work more than 50 percent of their time outside the city do not qualify for leave until they perform at least 240 hours of work in the city within a year.
- Paid or unpaid interns taking part in an employer’s or educational institution’s established internship program are now excluded from the definition of employee.
- Employers subject to the Railway Labor Act are now excluded.
- There is now an expanded definition of “family member” which includes any member of a covered employee’s household and makes clear that the concept of “parenthood” should be liberally construed to include legal parents, foster parents, same-sex parents, step parents, those serving in loco parentis, and other persons operating in caretaker roles.
- The amendment does away with 60-day waiting period for employees with a one-year employment contract and replaces it with a permissible 90-day waiting period before new employees may use their leave (although employees still begin accruing leave on date hired).
- The amended ordinance now requires all employers, regardless of size, to provide a “baseline amount” of least 56 hours of paid sick and safe leave per full-time employee per year. The prior ordinance required a “yearly cap” of between 48 and 64 hours depending on the size of the employer.
- Employers cannot request leave verification documentation from the employee until the employee’s fourth consecutive day of using leave, but employers may request verification if they have reason to suspect abuse of leave.
- Employers who obtain medical information as a result of an employee’s request for leave must keep such medical information confidential.
- The statute of limitations is reduced from two years to one year.
- Employees now have the ability to withdraw any complaint filed with the city, and such withdrawal will automatically terminate the investigative process, with no fine being assessed against the employer. This appears to allow an employee and an employer to reach a private resolution on an employee’s complaint during the investigative process.
- The civil penalty provision was amended to allow a $500 per day civil penalty for employers that “intentionally, knowingly, recklessly or negligently” violate the ordinance with a new offense accruing daily.
- The amended ordinance also specifically states that this leave is not considered to be “wages” but instead should be considered “fringe benefits” as defined by the Texas Labor Code. Curiously, the Texas Labor Code does not specifically define what “fringe benefits” are.
So, what are San Antonio employers supposed to do now? It is unlikely that the Texas Supreme Court will resolve the issue of whether local governments can create such ordinances until sometime in 2020. But remember, there is still litigation pending on this ordinance, and it is likely that the plaintiffs in that litigation will renew their application for injunctive relief prior to December 1. While no changes need to be made to any policies quite yet, employers should keep this issue on their radar. We will continue to keep you updated on this evolving issue.
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