From: Staffing

Texas Paid Sick Leave

Texas does not have a statewide paid sick leave; however, the cities of Austin and San Antonio have implemented paid sick leave ordinances.

Austin Paid Earned Sick Time

Important: On August 17, 2018, an Austin-based appeals court temporarily blocked the city’s paid sick leave ordinance from going into effect while portions of the law are litigated. The city’s appellees’ brief and the cross-appellees’ briefs are due on September 6, 2018. The reply briefs, if any, will be due 15 days after the date of filing of the appellees’ and cross-appellees’ briefs. According to the court, because all parties have an interest in the prompt resolution of this case, further requests for extensions of time will be disfavored.

Eligible employees working in the City of Austin are entitled to paid earned sick time leave (leave) beginning:

• October 1, 2018, for employers with more than five employees.
• October 1, 2020, for employers with no more than five employees at any time in the preceding 12 months.

Covered Employers

Private employers, including nonprofit organizations, are covered by the Austin paid earned sick time ordinance. The ordinance does not apply to state or federal employers.

Covered Employees

Covered employees are those who work for at least 80 hours per calendar year in Austin. Employees must be compensated for their work to be covered, and work includes that performed through a temporary or employment agency. The ordinance does not apply to independent contractors or unpaid interns.

Accrual

Employees begin to accrue leave at a rate of one hour per every 30 hours worked on the later of either:

• The commencement of employment; or
• The ordinance’s effective date.

Leave only accrues in hour-unit increments and there is no accrual of a fraction of an hour.

Frontloading

Employers may elect to frontload the entire amount of leave entitlement for employees at the beginning of each calendar year and are then not subject to carryover requirements.

Purposes

Employees may request leave for any of the following purposes:

• The employee’s or a family member’s illness, injury, health condition, or preventive care.
• As necessary to deal with domestic abuse, sexual assault, or stalking involving the employee or a family member.

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

Use

Employees may take leave for any permitted purpose; however, employers may cap an employee’s use of leave to eight calendar days per year.

Employees may use leave as soon as it is accrued. Employers may restrict the use of leave during an employee’s first 60 days of employment if the employer can establish that the employee’s term of employment is at least one year.

Employers may not condition the use of leave on the employee finding a replacement for the time missed.

Alternatives to Use

Via workplace policy, employers may permit the following alternatives to using leave:

• Employees voluntarily exchanging hours or shift trading in lieu of taking leave.
• Programs that incentivize employees to exchange hours or trade shifts in lieu of taking leave.
• Leave donation banks.

Compensation

Leave must be paid at the employee’s regular rate, exclusive of any overtime premium, tips, or commissions, but at no less than the state minimum wage.

Caps and Carryover

All available, unused leave carries over to the following year, subject to the following annual accrual caps:

• For small employers (up to 15 employees): 48 hours.
• For all other employers (more than 15 employees): 64 hours.

Employee Notice

Employees may not be denied leave if both of the following apply:

• Leave was accrued and is available for use.
• A request was made for its use before the scheduled work time; however, leave may not be denied if it is unforeseeable (thus a request could not be timely) and for a permitted purpose.

Verification

Employers may adopt reasonable verification procedures to establish that an employee’s request for leave is for a permitted purpose when leave is for more than three consecutive work days.

Employee Handbooks and Statements

Employer handbooks must provide employees with notice of their leave rights and remedies under the ordinance.

Employers must provide employees with a statement, electronically or in writing, showing the amount of leave available on at least a monthly basis.

Transfer or Rehire

An employee transfer with the same employer does not impact his or her amount of leave or the right to use it. Additionally, if an employee is rehired by the same employer within six months of termination, then he or she may use previously earned leave.

Successor Employer

Successor employers must provide all accrued leave at the time of acquisition to employees of its predecessor.

Retaliation

An employer may not transfer, demote, discharge, suspend, reduce hours, or directly threaten these actions against an employee for requesting or using leave, or for reporting a violation or participating in an administrative proceeding under the law.

Posting

Employers must conspicuously post a sign describing the ordinance’s requirements in at least English and Spanish where notices to employees are customarily posted. However, posting is not required until the City of Austin makes the poster available on its website.

Recordkeeping

Employers must maintain records establishing the amount of leave accrued and used by each covered employee.

Enforcement

The City of Austin Equal Employment Opportunity/Fair Housing Office enforces the ordinance and complaints must be filed within two years from the date of the violation. Employers may be penalized up to $500 for each violation.

San Antonio Earned Paid Sick Time

San Antonio employees must be provided earned paid sick time when an employee, or the employee’s family member, experiences any of the following:

• Illness, injury, stalking, domestic abuse, sexual assault; or
• Otherwise requires medical or health care, including preventative care and mental health care.

Under the ordinance, employers must both:

• Provide employee with earned paid sick time in an amount up to the employee’s available earned paid sick time; and
• Pay earned paid sick time in an amount equal to what the employee would have earned if the employee had worked the scheduled work time, exclusive of any overtime premium, tips, or commissions, but no less than the state minimum wage.

Effective Dates

The ordinance becomes effective for most employers on August 1, 2019; however, employers with no more than five employees at any time in the preceding 12 months are not required to comply with the ordinance until August 1, 2021.

Covered Employer

The ordinance covers all employers in the City of San Antonio that provide employees with compensation and exercise control over their wages, hours, and working conditions.

Exceptions

The following are not covered by the ordinance:

• The United States or a U.S. owned corporation.
• The state or any state agency.
• The City of San Antonio, Texas, or any other political subdivision of the state or other agency that cannot be legally regulated by city ordinance.

Covered Employee

The ordinance covers all employees who annually perform at least 80 hours of work for pay within the city for a covered employer including work performed through the services of a temporary or employment agency.

Exceptions

The ordinance does not apply to independent contractors or unpaid interns.

Usage

Earned paid sick time may be used upon accrual. Employers may restrict the use of earned paid sick time during an employee’s first 60 days of work if the employer establishes that his or her term of employment is at least one year.

An employee may request earned paid sick time for any of the following:

• 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. A family member is 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
• 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.

Granting Leave

Leave must be granted if the employee has available earned paid sick time and made a timely request for its use before his or her scheduled work time. Additionally, employers may not prevent an employee from using earned paid sick time for an unforeseen qualified absence.

An employer may provide paid leave benefits to its employees that exceed the ordinance’s requirements and may grant earned paid sick time prior to accrual.

Additional Leave Not Required

Employers that otherwise provide leave that meets the ordinance’s requirements are not required to provide additional earned paid sick time to that employee. Employers are not required to provide additional earned paid sick time to an employee if he or she has used paid time off that meets the requirements of the ordinance but not for a permitted purpose.

Employer Protections

Employers are not required to pay an employee for leave that is requested in excess of that which is available. Employers are also not required to allow an employee to use earned paid sick time more than eight times per year.

Accrual

The ordinance provides the following terms of accrual:

• Earned paid sick time accrues when employment begins or January 1, 2019, whichever is later.
• Employees accrue one hour of earned paid sick time for every 30 hours worked.
• Earned paid sick time accrues in one-hour unit increments. There is no accrual of a fraction of an hour of earned paid sick time unless an employer chooses such smaller increment.

Cap

The yearly cap for earned sick time is as follows, unless the employer chooses a higher limit:

• Medium or large employers: 64 hours per employee per year. A medium or large employer is an employer with more than 15 employees at any time in the preceding 12 months, excluding family members.
• Small employers (less than 15 employees): 48 hours per employee per year.

Replacement Worker, Exchanges, and Leave Donation

Employees may not be required to find a replacement to cover the hours of earned paid sick time as a condition of using earned paid sick time. However, employers may:

• Allow an employee to voluntarily exchange hours or voluntarily trade shifts with another employee.
• Establish employee incentives for voluntarily exchanging hours or voluntarily trading shifts.
• Permit employees to donate available earned paid sick time to another employee.

Verification

An employer may request verification, and adopt verification procedures, of the employee’s need for earned paid sick time if he or she requests more than three consecutive work days of leave. However, employers may not adopt verification procedures that would require an employee to explain the nature of the domestic abuse, sexual assault, stalking, illness, injury, health condition, or other health need when making a leave request.

Successor Employers, Rehires, and Transfers

Successor employers must provide currently employed workers with all earned paid sick time available to them immediately before the acquisition.

An employee who is rehired by an employer within six months following separation from employment from that employer may use any earned paid sick time available to the employee at the time of the separation.

Neither the amount of earned paid sick time nor the right to use earned paid sick time is affected by an employee’s transfer to a different facility, location, division, or job position with the same employer.

Notice

At least monthly, employers must provide (electronically or in writing) each employee with a statement showing the amount of his or her available earned paid sick time. Employers with employee handbooks must include a notice of an employee’s rights and remedies under the ordinance in the handbook.

Retaliation

Employers may not transfer, demote, discharge, suspend, reduce hours, or directly threaten any of these actions against an employee because the employee:

• Requests or uses earned paid sick time.
• Reports or attempts to report a violation of the ordinance.
• Participates or attempts to participate in an investigation, proceeding, or otherwise exercises any rights under the ordinance.

Posting

If the Director of the San Antonio Metropolitan Health District (department) provides a sign about the ordinance on the department’s website, employers must conspicuously display the sign where notices to employees are customarily posted.

Recordkeeping

Employers must maintain records establishing the amount of earned paid sick time accrued and used by each employee for three years.

Enforcement

The San Antonio Metropolitan Health District (department) enforces the ordinance. An employee may file a complaint with the department, which may investigate complaints, including anonymous complaints alleging a violation. A complaint alleging a violation must be filed within two years of the date of violation.

Violations may be punished by a civil penalty of up to $500 per violation. Each violation constitutes a separate offense.