Seyfarth Synopsis: Employers in Austin, Dallas, and San Antonio expected the Texas Legislature to overturn their cities' recent foray into city-specific paid sick leave laws. However, the Texas Legislature recently wrapped-up its legislative session without passing a law curtailing city-specific paid sick leave laws—and the Legislature will not meet again until 2021. In the meantime, Dallas' and San Antonio's paid sick leave laws are scheduled to go into effect on August 1, 2019. (Austin's ordinance is stayed pending an appeal to the Texas Supreme Court.) As a result, unless the Texas Supreme Court rules that the laws are unconstitutional, employers in Dallas and San Antonio should begin preparing to comply with the paid sick leave requirements.
In recent years, many cities and other municipalities have enacted their own paid sick leave requirements. These laws require employers in those jurisdictions to provide mandatory paid sick leave to their employees, and to provide their employees with specific paid time off throughout the year.
Although the majority of cities to pass such legislation are on either the Atlantic or Pacific coasts, Texas enjoys its share of city-specific paid sick leave requirements. Specifically, Austin, Dallas, and San Antonio have all recently passed paid sick leave laws. And while Austin's ordinance has been stayed by the court system, Dallas' and San Antonio's ordnances are scheduled to go into effect on August 1, 2019. Furthermore, the relief that many employers expected from the Texas Legislature failed to materialize. Accordingly, employers in Dallas and San Antonio should begin preparing for compliance.
History of Paid Sick Leave in Texas
In February 2018, the City of Austin passed Texas' first mandatory paid sick leave law. Austin's paid sick leave law was scheduled to go into effect on October 1, 2018, but the ordinance was challenged in court by business groups and the State of Texas. The Austin Court of Appeals stayed the October implementation date, and in November 2018, the Court stayed the entire ordinance, finding that it conflicted with the Texas Minimum Wage Act and, accordingly, was unconstitutional under Texas law. (The Texas Constitution prohibits city ordinances from conflicting with the general laws of the State of Texas.) In March, the City of Austin filed a petition for review with the Texas Supreme Court, which has not yet decided whether it will take the case. In the meantime, Austin's paid sick leave law is not in effect.
In August 2018, while Austin's law was being challenged, San Antonio passed its own mandatory paid sick leave ordinance. Several months later, Dallas joined San Antonio and Austin, passing its mandatory paid sick leave ordinance in April. Both the Dallas and San Antonio laws are scheduled to go into effect on August 1, 2019. Neither have yet been challenged in court, but the same arguments lodged against the Austin ordinance likely apply equally to the Dallas and San Antonio statutes.
Until recently, Texas employers believed that the Texas Legislature would pass legislation blocking local jurisdictions from passing their own paid sick leave measures—and most commentators believed the Legislature would overturn the Austin, Dallas, and San Antonio laws. Several such bills were introduced during the most recent legislature session, and the bills enjoyed strong support from Governor Abbott and many business organizations. However, despite passing in the Senate, the bills died in the House and were not enacted into law. As a result, Texas cities—including Dallas and San Antonio—are free to pass their own city-specific paid sick leave laws. And because the Texas Legislature will not reconvene until January 2021, employers must begin preparing for paid sick leave laws in the Lone Star State.
Paid Sick Leave Requirements in Dallas and San Antonio
Both the Dallas and San Antonio ordinances are substantially similar. Both laws require employers to provide employees with mandatory paid sick leave and both permit employees to accrue paid sick leave throughout the year, as follows:
- Definition of Employer. Any person, company, corporation, firm, partnership, labor organization, non-profit organization, or association that pays an employee to perform work for an employer and exercises control over the employee's wages, hours, and working conditions.
- Definition of Employee. An individual who performs at least 80 hours of work in either Dallas or San Antonio in a year for an employer.
- Accrual Rate and Cap. Employees accrue one hour of earned paid sick time for every 30 hours worked, up to 64 hours of earned paid sick time per year for most employers (or 48 hours per year for smaller employers).
- Employees may carry over all available earned paid sick time up to the applicable yearly cap. However, employers who frontload the earned paid sick time (i.e., provide either 64 or 48 hours at the beginning of the year) are not required to permit year-end carryover.
- Usage Cap. Employees may take up to 8 days of paid sick leave per year (assuming they have accrued that much).
- Reasons for Use. Employees may take paid sick time for the following reasons: (1) the employee's physical or mental illness, physical injury, preventative medical or health care, or health condition; (2) the employee's need to care for their family member's physical or mental illness, physical injury, preventative medical or health care, or health condition; and (3) certain safe time reasons relating to the employee's or their family members' status as a victim of domestic abuse, sexual assault, or stalking.
As mentioned, both the Dallas and San Antonio paid sick leave ordinances go into effect on August 1, 2019. (The Austin ordinance remains stayed pending appeal to the Texas Supreme Court.) As a result, employers in Dallas and San Antonio should began taking steps to comply with their cities' requirements, including:
- Review existing sick leave policies (or implement new policies) to ensure that policies satisfy the Dallas or San Antonio ordinances.
- Review policies on attendance, anti-retaliation, conduct, and discipline for compliance with the Dallas and San Antonio ordinances.
- Provide training to managers and supervisors, to ensure that the management team is up-to-date on the new requirements and knows how to handle employee requests for paid sick leave.
- Continue to monitor legal developments involving the Dallas, San Antonio, and Austin ordinances. It is possible that the laws may be delayed or even overturned via court order. Or that a court will reinstate the Austin ordinance.
Paid sick leave laws will continue to proliferate across the country. And because the Texas Legislature failed to pass any legislation dealing with city-specific paid sick leave laws, the paid sick leave trend will continue to proliferate in Texas as well—unless our Supreme Court rules that such laws violate Texas law. Accordingly, Texas employers must continue to monitor the legal developments and be prepared to comply as the laws go into effect.
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