Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
At approximately 1:00 a.m. CST on February 16, 2018, the Austin, Texas City Council approved an ordinance establishing a paid sick leave requirement that will apply to all private employers located within the City. If, as expected, the mayor signs the ordinance, Austin will join the growing list of cities and states obligating employers to grant paid sick time to workers.
The final text of the ordinance will not be available for several days, as the City Clerk must verify the approved language. Once the finalized ordinance is posted, we will address its requirements in greater detail. For now, this article highlights the key components of the law, based on our current understanding of what transpired at the Council meeting.1
Coverage. The ordinance applies to all private employers, regardless of size. Employees are covered by the ordinance if they perform at least 80 hours of work for pay annually within the City of Austin.
Accrual, Caps, and Carry-Over. Based on the draft ordinance, employees are entitled to earn 1 hour of sick time for every 30 hours worked in the City. Sick time will begin accruing when employment commences or when the ordinance takes effect, whichever is later.
The ordinance provides for caps on an employee’s accrual of leave time, based on the employer’s size. “Medium or large employers” (i.e., those with more than 15 employees), are required to allow employees to accrue up to 64 hours of leave time per year. Smaller employers are required to allow employees to accrue up to 48 hours per year. All available and earned time, up to the applicable cap, must carry over into the next year.
Permissible Uses. Earned leave time may be used by all employees for sick time and by victims of domestic violence, sexual assault, and stalking for time to seek medical attention, relocate, obtain victim’s services, or participate in related legal proceedings. Leave may be taken for the employee’s own care or to care for the needs of a family member, which is defined to include spouses, parents, and children, as well as any other blood relative, along with anyone “whose close association with the employee is the equivalent of a family relationship.”
Compensation. Employees using their accrued sick time must receive the same compensation they would have received if they had worked their scheduled hours “exclusive of any overtime premium, tips, or commissions, but no less than the state minimum wage.”
Additional Provisions. As presented to the Council, the ordinance also imposes notice, posting, and record-keeping requirements.
Employers are free to “adopt reasonable verification procedures” to confirm that an employee’s absence falls under one of the permissible uses, but only if leave would be taken for more than 3 consecutive work days. Employers may not, however, require employees to find replacements in order to exercise their right to sick time. Retaliation is also prohibited.
Enforcement and Penalties. The City of Austin’s Equal Employment Opportunity/Fair Housing Office (EEO/FHO) will be responsible for enforcing the new law. The ordinance requires the EEO/FHO to adopt interpretive regulations as needed, educate the public, and seek voluntary compliance prior to collecting civil penalties. If voluntary compliance is not forthcoming, the EEO/FHO may assess a civil penalty of $500 for each violation.
The EEO/FHO may issue only notices that a penalty may be imposed for leave time violations occurring after the effective date through May 1, 2019, at which time the full penalty provisions presumably kick in. Penalties for retaliation may be assessed once the law becomes effective.
Looking Ahead. The new law will take effect, in large part, on October 1, 2018. It does not cover employers with five or fewer employees until October 1, 2020.
There are already rumblings that the Texas Legislature will take steps to curtail the Austin ordinance in its next session. The Legislature is more conservative than the Austin City Council and is likely to pursue legislation to preempt and undo the Austin ordinance.2 For now, however, employers operating in Austin should begin to prepare for compliance with the ordinance and stay tuned for further developments.
1 This summary is based on the last amended proposal submitted on February 15, 2018 prior to the City Council meeting and debate. That draft text is available here.
2 The Texas legislature has preempted Austin’s ordinances in the past. See, e.g., Alex Samuels, Uber, Lyft return to Austin as Texas Gov. Abbott signs ride-hailing measure into law, Texas Trib. (May 29, 2017).