Austin, Texas recently became the first municipality in the South to enact a paid sick and safe leave law for private sector employees. The sick and safe leave ordinance will take effect on October 1, 2018 for employers with five or more employees. Employers with fewer than 5 employees will have an additional two years – until October 1, 2020 – to begin complying.
While there seems to be growing support in the Texas Legislature for a bill that would reverse this ordinance, we understand that it would not take up any such legislation until early 2019 at the earliest. Consequently, employers should not delay planning to comply, and should be ready to implement the ordinance for their Austin based employees by October 1 of this year.
Eligibility for and Accrual of Sick and Safe Leave
To be eligible, an employee must work at least 80 hours in a calendar year within the Austin city limits. Independent contractors and unpaid interns are not eligible under the ordinance. Eligible employees will accrue one hour of paid sick and safe leave for every 30 hours worked, up to a maximum of 64 hours annually for “medium or large employer[s]” (more than 15 employees in Austin); or (b) 48 hours annually for ”small employer[s]” (up to 15 employees in Austin). Earned sick time will begin to accrue on the date the ordinance becomes effective (either October 1, 2018 or October 1, 2020) or at the commencement of employment, whichever occurs later with respect to a particular employee.
Employees can carry over unused leave time into the following year up to the annual accrual maximum, unless the employer chooses to automatically provide (without requiring earning and accrual) at least 64 hours of leave to the employee at the beginning of the year. In any event, an employer may cap an eligible employee’s usage of accrued sick and safe leave at 8 calendar days per year, such that any accrued leave that rolls over from year to year will not result in an employee using more than 8 days of paid sick and safe leave in a calendar year.
While leave begins to accrue immediately upon commencement of employment, an employer may prohibit use of sick and safe leave during the employee’s first 60 days of employment if the employer establishes that the employee’s term of employment is at least one year. The ordinance fails to address how an employer might establish that an employee’s employment will last for at least one year. Until the City resolves that issue through amendment or regulation, or other guidance on this issue, employers should not prohibit use of sick and safe leave during an employee’s first 60 days of employment.
The law also requires that employers restore an employee’s previous balance if the employee is rehired within six months.
Employers may provide more generous leave than the ordinance requires. The ordinance does not require an employer that already makes paid time off available to employees under conditions that meet the ordinance’s accrual, purpose, and usage requirements to provide additional earned sick time to employees.
Using Sick and Safe Leave
Eligible employees can use sick and safe leave for these purposes:
- The employee’s own physical or mental illness or injury, preventative medical or health care, or health condition;
- To care for a family member with a physical or mental illness, preventative medical or health care, injury or health condition; and
- The employee’s need to seek medical attention, seek relocation, obtain services of a victim services organization, or to participate in legal or court ordered action related to an incident of victimization from domestic abuse, sexual assault or stalking involving the employee or a family member.
The ordinance defines “family member” as an employee’s spouse, child, parent, or any other individual related by blood whose close association with the employee is the equivalent of a family relationship.
The ordinance requires employees to make a “timely” request for leave before their scheduled work time, but employees cannot be denied leave for unforeseeable qualified absences. If an employee requests to use her sick or safe leave for a period of more than three consecutive days, employers may require the employee to verify that she took leave for one of the enumerated purposes above.
Notice to Employees
Employers will be required to provide written notice to employees of their rights under the law – which can be done by modification to the employee handbook – as well as display a notice of rights poster that will be issued by the City of Austin. Employers will also be required to provide employees with a statement that shows their available sick and safe leave accruals on at least a monthly basis.
Austin’s paid sick and safe leave ordinance is similar to that adopted in several other jurisdictions, so Mintz Levin’s employment lawyers have experience assisting clients in implementing these laws and adopting handbook policies and other practices to ensure compliance. We recommend that affected employers add a robust Sick and Safe Leave policy to their handbooks by this summer and contact their payroll providers to discuss how to account for accrual of this leave. Hopefully, by that time the City will have issued some helpful guidance, as well; if it does, we will update this post accordingly.