On August 16, 2018, the San Antonio City Council adopted a paid sick and safe leave ordinance which, aside from minor linguistic differences, is identical to the ordinance passed earlier this year in Austin. The next day, the Texas Court of Appeals,Third District, issued an order that temporarily enjoins Austin’s ordinance from taking effect until the appeal is resolved.
The City of Austin is currently embroiled in a legal challenge to its law, which, depending on the outcome, could impact San Antonio’s ordinance. Various organizations, including the Texas attorney general, have argued that state law preempts the Austin ordinance (and any similar local law). A state district court judge denied the challengers’ request for a temporary injunction preventing the ordinance from taking effect. However, the denial was appealed to a state appellate court, which, as noted above, issued a temporary order that prevents the Austin law from taking effect as scheduled on October 1, 2018, until the appeal is resolved. On appeal, the
only issue that will be addressed is whether the lower court should have granted a temporary injunction. The appellate court will not decide the lawsuit’smerits, i.e., whether the ordinance is valid or preempted by existing state law. Even if the legal challenge to Austin’s ordinance does not eventually succeed, the Austin ordinance may not exist for long, and the San Antonio law might never take effect, because state representatives are expected to introduce a law that expressly prohibits local governments from enacting paid sick and safe time ordinances. Such a legislative bill has a higher-than-average likelihood of passing in Texas’ conservative environment.
Should Austin succeed in defending its law’s validity and/or the state does not enact a preemption law, employers with San Antonio operations will need to familiarize themselves with what the new law requires. San Antonio’s ordinance is scheduled to generally take effect on August 1, 2019, although for employers with five or fewer employees in the preceding 12 months, compliance obligations are delayed until August 1, 2021.
Covered Employers, Employees, and Relation
The San Antonio law covers all private employers. However, a greater leave amount must be provided by employers with more than 15 employees. Only employees who perform at least 80 hours of work for pay within the city limits are covered, including those performing work through the services of a temporary or employment agency. The ordinance does not cover independent contractors or unpaid interns. Unlike many similar laws, the ordinance applies to employees covered by a collective bargaining agreement (CBA) and only one provision in the law – accrual caps – may be partiallywaived via a CBA. Employees can use leave for themselves or to care for or assist a family member, which includes an employee’s child, parent, or spouse, or any other individual related by blood or whose close association with the employee is the equivalent of a family relationship.
Accrual, Caps, and Carryover
Employees must accrue at least one leave hour for every 30 hours worked in San Antonio. Leave accrues in whole-hour units, not proportionally. Different annual accrual caps apply based on an employer’s size. For employees of employers with 16 or more employees, annual accrual is capped at 64 hours, whereas a 48-hour annual accrual cap applies to employees of smaller employers.Using Leave
Generally, leave is available for use as soon as it is accrued, but employers may restrict use during the first 60 days of employment for employees whose term of employment is at least one year. Therefore, for your usual at-will employee who is not guaranteed at least one year of employment, if leave is accrued, the employee can immediately use it. An employer is not required to allow an employee to use leave on more than eight days in a year. When employees use leave, they must be paid what they would have earned had leave not been taken, which cannot be less than the minimum wage.
Prohibitions, Penalties & Enforcement
Employers cannot require employees to find replacement workers to cover the hours they use leave. Additionally, they cannot transfer, demote, discharge, suspend, reduce hours, or directly threaten these actions against an employee because that employee: (1) requests or uses leave; (2) reports or attempts to report a violation of the law; (3) participates or attempts to participate in an investigation or proceeding under the law; (4) otherwise exercises any rights afforded by the law