Dallas joins the fray – Will paid sick leave prevail in Texas?

Overview:  The Dallas, Texas City Council passed an ordinance requiring employers to provide paid sick leave beginning as early as August 1, 2019.  However, whether the ordinance will go into effect is uncertain.

Effective Date: August 1, 2019

Details:

Over the next several months, the fate of local paid sick leave laws may well be decided by the Texas legislature. But while lawmakers continue to debate whether Texas cities should be prohibited from establishing their own paid sick time mandates, efforts to expand their reach are marching forward. The City of Dallas has boldly entered the fray.

On April 24, 2019, Dallas became the third major city in Texas to pass an ordinance requiring businesses to provide employees working in the city with paid sick leave when they or a family member experience illness, injury, stalking, domestic abuse or sexual assault or otherwise need medical or mental health care. The Dallas Earned Paid Sick Time Ordinance will become effective on August 1, 2019 for employers with more than five employees and on August 1, 2021 for those employing five or less workers. Its provisions track those of the Austin Earned Sick Time Ordinance passed in February 2018, which we have discussed previously. While the Austin ordinance was held unconstitutional by the Third Court of Appeals (a decision now before the Texas Supreme Court), a largely-identical San Antonio ordinance took effect on January 1 of this year, with enforcement to begin on August 1.

Meanwhile, challenges to such ordinances are being lodged at the state legislative level. Specifically, SB 2485 and SB 2487 would prohibit cities from regulating certain employment benefits and leave, as is the case with the Dallas, Austin, and San Antonio ordinances. A controversy surrounding the bills is whether they will infringe on existing municipal non-discrimination ordinances.

Highlights of the Dallas mandate are as follows:

Employers Subject to the Paid Sick Leave Ordinance:

• The ordinance applies to all private for-profit and nonprofit employers that have employees working inside the city of Dallas at least 80 hours a year.

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

Effective Date of the Ordinance:

• The ordinance will take effect on August 1, 2019, for all covered employers with five or more employees.

• The effective date is delayed until August 1, 2021, for employers with fewer than five employees at any time in the preceding 12-month period.

Basic Requirements of the Ordinance:

• Employees earn one hour of sick time for every 30 hours worked, but there are caps on accrual depending on the employer’s size. An employer that has had 15 or more employees at any time in the preceding 12-month period must provide at least 64 hours of paid sick leave per year, whereas an employer with fewer than 15 employees must provide at least 48 hours of paid sick leave per year.

• Earned sick time is generally available for use as soon as it is accrued. An employer may restrict an employee from using sick time during the first 60 days of employment if the employer provides the employee with a term of employment that is at least one year.

• Earned sick time carries over to the following year. An employer is not required, however, to allow an employee to use more than the annual cap (either 48 or 64 hours, depending on the employer’s size) per year.

Reasons to Use Paid Sick Leave:

• Paid sick leave may be used to care for an employee’s own physical or mental illness, physical injury, preventative medical or health care, or health condition, or that of the employee’s family member.

• An employee may also use this time off to seek medical attention, seek relocation, obtain victim services, or participate in legal action related to domestic abuse, sexual assault, or stalking involving the employee or a family member of the employee.

• Employees must make a timely request for the use of earned sick time before their scheduled work time, with potential exceptions for unforeseen emergencies.

Records Employers Must Maintain, Provide, or Display:

• Employers must provide a monthly statement showing the amount of available earned sick time to each employee. Employers must also keep records to show the amount of sick time accrued by each employee.

• Employers with employee handbooks must include a notice to employees about the contents of the ordinance.

• Once the City of Dallas provides signage on its website, employers must display a sign about the ordinance in English and Spanish in a conspicuous place.

Miscellaneous Requirements:

• Employers may not retaliate against employees for exercising their rights under the ordinance. An employer may not transfer, demote, discharge, suspend, reduce hours, or directly threaten these actions against an employee for requesting or using earned sick time, reporting a violation of the ordinance, or participating in an investigation or proceeding related to the ordinance. Civil penalties for retaliation may be assessed as early as April 1, 2020.

• Employees who are rehired within six months following separation must have their prior sick time reinstated.

• Civil penalties for substantiated violations may be assessed up to $500 per violation.

For a copy of Texas Senate Bill 2485 as passed by the Senate, please click on the link provided below:

https://capitol.texas.gov/tlodocs/86R/billtext/pdf/SB02485E.pdf#navpanes=0

Action Required:  Dallas employers should stay tuned as the legislative and legal challenges to city-driven paid sick and safe leave laws continue. If the Dallas and San Antonio ordinances go into effect on August 1, they will require immediate action. This includes tracking leave accruals, providing leave and issuing employee handbook updates and other notices.

Please contact your dedicated service professional with any questions. 

*Produced in partnership with Jackson Lewis P.C.