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Other Leaves: Texas

Other Leaves requirements for other states

Federal law and guidance on this subject should be reviewed together with this section.

Authors: Shafeeqa W. Giarratani and James I. Hughes, Norton Rose Fulbright

Summary

  • There are various types of leave that may be available to an employee in Texas. See Leaves of Absence.
  • Texas does not have a state family and medical leave law applicable to private employers. See Family and Medical Leave.
  • An employer must allow an employee to take leave to serve as a juror. See Jury Duty Leave.
  • An employee is entitled to leave for court attendance pursuant to a valid subpoena. See Witness Duty Leave.
  • An employer may not terminate an employee who leaves the workplace to participate in a general public evacuation ordered under an emergency evacuation order. See Emergency Evacuation Leave.
  • An employer may not terminate an employee who is a member of the military forces of the State of Texas because that employee is ordered to authorized training or called to duty. See Military Leave.
  • An employer may not terminate or otherwise discriminate against an employee who takes a leave from work in order to attend a precinct convention or attend a county, district or state convention as a delegate. See Political Leave.
  • An employer must provide an employee with time off to vote. See Voting Leave.
  • Dallas has requirements pertaining to paid sick leave. See Local Requirements.

Leaves of Absence

There are various types of leave that may be available to an employee in Texas. To the extent that applicable federal, state or local laws conflict, an employer should apply the provisions that provide the greatest benefits and protections to the employee.

An employer should remain alert to the various types of leave available and take care to track employees' leaves of absence, including:

  • The date the leave begins;
  • The type of leave; and
  • The expected return date.

An employee who exercises leave rights is not protected from discipline for legitimate reasons that are unrelated to the leave and that are not otherwise prohibited by law.

If an employer must discipline an employee who has exercised his or her leave rights, it should carefully document the reasons for the discipline, review past application of the rule (to ensure the policy is being enforced evenhandedly), and consider whether to seek the advice of counsel before imposing the discipline.

Family and Medical Leave

Texas does not have a state family and medical leave law applicable to private employers. However, a Texas employer with 50 or more employees is likely required to adhere to the federal Family and Medical Leave Act (FMLA).

Jury Duty Leave

An employer may not terminate a permanent employee because the employee serves as a juror. An employee is entitled to return to the same employment that the employee held when summoned for jury service if the employee, as soon as practical after release from jury service, gives the employer actual notice that the employee intends to return. For more information on jury duty leave, please see Jury Duty: Texas. See also Future Developments.

Witness Duty Leave

An employee is entitled to leave for court attendance. An employer may not terminate, discipline or otherwise penalize an employee because the employee complies with a valid subpoena to appear in a civil, criminal, legislative or administrative proceeding.

An employer that violates this law is subject to penalties. If the subpoena is issued by a court, the employer may be found in contempt by the court issuing the subpoena. If the subpoena is issued by a legislative committee or a state agency, the employer is subject to the authority of the committee or agency to impose a monetary penalty up to $500.

An employee terminated in violation of this law is entitled to return to the same employment that the employee had at the time the employee was subpoenaed if the employee, as soon as practical after release from compliance with the subpoena, gives the employer actual notice that the employee intends to return. In addition, the employee may recover:

  • Damages in an amount up to six months' compensation; and
  • Reasonable attorney fees.

Reemployment is not required if it is impossible or unreasonable because of a change in the employer's circumstances while the employee complied with the subpoena.

+Tex. Lab. Code § 52.051.

An employer should consider including a court attendance leave policy in its handbook to educate employees, including supervisors, about the availability of witness/court attendance leave and to show its compliance with Texas law.

Emergency Evacuation Leave

An employer may not terminate or in any way discriminate against an employee who leaves work to participate in a general public evacuation ordered under an emergency evacuation order.

An emergency evacuation order is an official statement issued by the governing body of Texas or a political subdivision Texas to recommend the evacuation of all or part of the population of an area stricken or threatened with a disaster. Orders by mayors or county government officials could fall within the reach of the law.

A disaster includes the occurrence or imminent threat of widespread or severe damage, injury, or loss of life or property that results from a natural or man-made cause, including fire, flood, earthquake, wind, storm, wave action, oil spill or other water contamination, volcanic activity, epidemic, air contamination, blight, drought, infestation, explosion, riot, hostile military or paramilitary action, or other public calamity requiring emergency action, or an energy emergency.

If an employer terminates an employee in violation of the law, the employee is entitled to reinstatement (in the same or an equivalent position with commensurate pay) and may recover damages for lost wages and benefits. The law does not apply to emergency services personnel if the employer provides adequate emergency shelter, or to any person necessary to provide for the safety and well-being of the general public, including a person necessary for the restoration of vital services. While this law appears to apply only to an employee who leaves work for an evacuation, employers may want to treat all employees who do not report to work because of the evacuation in the same fashion.

+Tex. Lab. Code § 22.001; +Tex. Lab. Code § 22.002; +Tex. Lab. Code § 22.003; +Tex. Lab. Code § 22.004.

An employer should consider including an emergency evacuation leave policy in its handbook to educate employees, including supervisors, about the availability of emergency evacuation leave and to show its compliance with Texas law.

Military Leave

A Texas employer must provide a leave of absence to employees who belong to the state military forces and are called to active duty. For more information on military leave, please see USERRA: Texas.

Voting Leave

An employer is required to provide employees with time off to vote. A person violates this law if, with respect to another person over whom the person has authority in the scope of employment, the person knowingly:

  • Refuses to permit the other person to be absent from work on election day for the purpose of attending the polls to vote; or
  • Subjects or threatens to subject the other person to a penalty (including a loss or reduction of wages) for attending the polls on election day to vote.

This law does not apply when the person's conduct occurs in connection with an election in which the polls are open on election day for voting for two consecutive hours outside of the voter's working hours.

A violation of the Texas voting leave law is a Class C misdemeanor. State law does not, however, provide for a private right of action.

+Tex. Elec. Code § 276.004.

An employer should consider including a voting leave policy in its handbook to educate employees, including supervisors, about the availability of time off to vote and to show its compliance with Texas law.

Political Leave

An employer may not terminate or otherwise discriminate against an employee who takes a leave from work in order to attend a precinct convention or attend a county, district or state convention as a delegate; however, such leave may be unpaid.

If an employer violates this law it is consider a Class C misdemeanor.

+Tex. Elec. Code § 161.007.

An employer should consider including a political leave policy in its handbook to educate employees, including supervisors, about the availability of political leave and to show its compliance with Texas law.

Leave Policies

No Texas law requires private employers to provide employees with sick leave, personal leave or vacation benefits, whether paid or unpaid. If an employer chooses to provide such benefits pursuant to a company policy or a contract, it must comply with the terms of the policy or contract.

Additionally, employers must ensure such benefits are provided in a nondiscriminatory matter. For example, a leave policy allowing employees to take personal leave to care for a sick child must extend to foster children. An employer commits an unlawful employment practice if it administers a leave policy under which an employee may take personal leave to care for or otherwise assist the employee's sick child and the policy does not treat an employee's foster child in the same manner as an employee's biological or adopted minor child. The foster child must live in the same household as the employee and be under the conservatorship of the Department of Family and Protective Services. +Tex. Lab. Code § 21.0595.

Training

Employers should be aware that certain leaves are protected by state law and therefore it should train its supervisory employees not to take action against an employee because he or she took leave or indicated that he or she may take the leave in the near future. See Training and Development: Federal.

Local Requirements

Dallas Paid Sick Leave

Dallas employers must provide paid sick and safe leave to eligible employees under the Earned Paid Sick Time Ordinance, beginning August 1, 2019. However, an employer having no more than five employees at any time in the preceding 12 months must provide earned paid sick time beginning August 1, 2021.

The City has released rules for administering the ordinance, which are reflected below. The rules do not have the force of law. However, they do express the City's interpretation of employers' obligations under the law.

Note: A lawsuit was filed in state court challenging Dallas's law.

Covered Employers

An employer includes any person, company, corporation, firm, partnership, labor organization, nonprofit organization or association that pays an employee to perform work for an employer and exercises control over the employee's wages, hours and working conditions. It does not include:

  • The US;
  • A corporation wholly owned by the US government;
  • The state or a state agency; and
  • The City of Dallas or any other political subdivision of the state or other agency that cannot be regulated by City ordinance.

Dallas, Texas Code of Ordinances Sec. 20-2(6).

Eligible Employees

An employee is an individual who performs at least 80 hours of work for pay within the City of Dallas in a year for an employer, including work performed through the services of a temporary or employment agency.

An employee does not include:

  • A properly classified independent contractor according to Form C-8; and
  • Unpaid interns.

Dallas, Texas Code of Ordinances Sec. 20-2(5).

Rule 2 provides that an employee includes:

  • Paid apprentices;
  • Paid interns; and
  • Employees of independent contractors and government contractors.

Qualifying Reasons for Leave

Earned paid sick time may be used for the following reasons:

  • The employee's or a family member's physical or mental illness, physical injury or health condition or need for preventative medical or health care; and
  • The employee or a family member is a victim of domestic abuse, sexual assault or stalking, and needs to:
    • Seek medical attention;
    • Seek relocation;
    • Obtain services from a victim services organization; or
    • Participate in legal or court-ordered action.

Dallas, Texas Code of Ordinances Sec. 20-5.

An employer is not prevented from permitting use of paid sick leave for additional purposes. Rule 13.

A covered family member includes an employee's:

  • Spouse;
  • Child;
  • Parent; and
  • Any other individual related by blood or whose close association with the employee is the equivalent of a family relationship.

Dallas, Texas Code of Ordinances Sec. 20-2(7).

Rule 2 further specifies that a family member includes "step" relationships (stepparents, stepsiblings, stepchildren, stepgrandparents, stepgrandchildren), anyone who can be claimed as a dependent and anyone who can claim someone as a dependent.

Accrual and Use of Leave

Accrual. Employees accrue one hour of paid sick time for every 30 hours worked in Dallas. Accrual begins August 1, 2019 (August 1, 2021, for employers with five or fewer employees), or when employment begins, whichever is later.

An employer may place a yearly cap on accrual based on the employer's size:

  • 64 hours, for employers with 16 or more employees at any time during the preceding 12 months (excluding family members); and
  • 48 hours for employers with 15 or fewer employees at any time during the preceding 12 months (excluding family members).

Earned paid sick time accrues in one-hour increments only. It does not accrue in fractions of an hour, unless the employer's written policies establish the accrual of earned paid sick time to be in fraction of an hour increments.

Use. Earned paid sick time may be used as soon as it is accrued after the employee has worked at least 80 hours in Dallas. However, an employer may restrict an employee from using paid sick leave in the employee's first 60 days of employment if the employer establishes that the employee's term of employment is at least one year.

An employer may also restrict employees to using earned sick time on a maximum of eight days in a year.

In addition, an employer has the right to inform employees that leave requested in excess of the employee's available leave time will be unpaid.

Employees may not be required to find a replacement worker to cover the hours of earned paid sick time as a condition of using that time.

An employer may grant earned paid sick time prior to accrual by an employee.

An employer may also establish a policy allowing employees to voluntarily exchange hours or trade shifts or a program that provides incentives to employees to exchange hours or trade shifts.

Carryover. All available earned paid sick time up to the yearly cap must be carried over to the following year, unless sick time is frontloaded.

Donation. An employer may permit employees to donate unused accrued paid sick leave to another employee.

Dallas, Texas Code of Ordinances Sec. 20-4; Dallas, Texas Code of Ordinances Sec. 20-5; Dallas, Texas Code of Ordinances Sec. 20-6.

Frontloading

Instead of using the accrual method, an employer may frontload earned paid sick time by making at least the yearly cap of earned paid sick time available to an employee at the beginning of the year under the purpose and usage requirements of the law. An employer that chooses to frontload earned paid sick time is not required to carry over sick time for that year. Dallas, Texas Code of Ordinances Sec. 20-4(d).

According to Rule 4, an employer that frontloads only a portion of the yearly cap of earned paid sick time available to employees must:

  • Use a reasonable calculation, consistent with the law's accrual requirements, to ensure that the accrual meets or exceeds the amount of paid sick time the employee would have otherwise accrued; and
  • Allow employees to carry over any unused earned paid sick time up to the applicable maximum.

Compensation

Earned paid sick time must be paid in an amount equal to what the employee would have earned if the employee had worked the scheduled work time, excluding any overtime premium, tips or commissions, but no less than the state minimum wage. Dallas, Texas Code of Ordinances Sec. 20-5(a).

Rule 7 provides examples of reasonable calculations for determining an employee's normal hourly compensation:

  • For an employee paid partially or wholly on a piece rate basis, divide the total earning by the total hours worked in the most recent workweek in which the employee performed identical or substantially similar work to the work the employee would have performed had the employee not used paid sick time;
  • For a salaried employee, divide the gross annual salary by 52 to determine the employee's weekly salary, and then divide the weekly salary by the number of hours in the employee's normal workweek, even if the employee actually works more or fewer hours in a particular workweek;
  • For an employee whose hourly rate of pay fluctuates:
    • Where the employer can identify the hourly rates of pay for which the employee was scheduled to have worked, use a calculation equal to the scheduled hourly rates of pay the employee would have earned during the period in which paid sick time is used; and
    • Where the employer cannot identify the hourly rates of pay that the employee would have earned if the employee worked, use a calculation based on the employee's average hourly rate of pay in the current and preceding 30 days, whichever yields the higher hourly rate; and
  • For an employee scheduled to work a shift of indeterminate length (e.g., a shift that is defined by business needs rather than a specific number of hours), multiply the employee's normal hourly compensation by the total hours worked by a replacement employee in the same shift, or similarly situated employees who worked that same or a similar shift.

According to Rule 8, sick time must be paid to employees no later than the payday for the pay period in which the employee used the paid sick leave. However, if the employer requires verification of the use of paid sick leave of more than three consecutive workdays, then no later than the payday for the pay period during which verification is provided to the employer.

Changes in Employment

An employee who is rehired six months following separation of employment from the same employer, whether at the same or a different location, may use any earned paid sick leave available to the employee at the time of separation. Dallas, Texas Code of Ordinances Sec. 20-5(g); Rule 9.

An employer is not required to pay an employee for any unused, accrued paid sick time at the time the employee separates from employment. However, if an employer chooses to do so, and an employee is rehired within six months after having received a payout, then the employer is not required to reinstate the earned paid sick time that was paid out at the time of separation. Rule 9.

An employee's transfer to a different facility, location, division or job position with the same employer may not affect the amount of or right to use earned paid sick time. Dallas, Texas Code of Ordinances Sec. 20-5(i).

When one employer acquires the controlling interest in another employer (or a recognized division of another employer), the successor must provide to an employee who was employed by the predecessor at the time of an acquisition and hired by the successor at the time of the acquisition all earned paid sick time available to the employee immediately before the acquisition. Dallas, Texas Code of Ordinances Sec. 20-4(f).

Employee Notice and Verification Requirements

An employer must provide earned paid sick time if an employee has available earned paid sick time and makes a timely request for use of such time before his or her scheduled work time. An employer may not prevent an employee from using earned paid sick time for an unforeseeable absence for a qualifying reason. Dallas, Texas Code of Ordinances Sec. 20-5(e). Rule 5 states that an employee may be required to comply with the employer's standard notification policies and call-in procedures for both foreseeable and unforeseeable absences, except when is not practicable to do so for an unforeseen absence.

An employer may adopt reasonable verification procedures to establish that an employee's request for earned paid sick time is for a qualifying reason if the employee requests leave for more than three consecutive workdays. An employer 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 requesting earned paid sick time. Dallas, Texas Code of Ordinances Sec. 20-5(d).

Employer Notice Requirements

An employer must display a sign describing the ordinance's requirements in a conspicuous place or places where notices to employees are customarily posted. The sign must be at least eight and one-half inches by 11 inches.

If displaying a sign is not feasible (e.g., an employee works remotely or does not have a regular workplace), then the employer may provide the sign on an individual basis in the employee's primary language in a physical or electronic format that is reasonably conspicuous and accessible.

Signs must be displayed or provided no later than the employee's first day of work, or within 14 days of the employee becoming covered by the law during the course of ongoing employment.

An employer that provides an employee handbook to its employees must include in the handbook a notice of employee rights and remedies under the law.

If an employer uses, as a matter of company policy, a 12-consecutive-month period other than a calendar year for the purpose of determining an employee's eligibility for and accrual of earned paid sick time, then it must provide its employees with written notice of the policy. This notice must be provided when the law takes effect or when employment begins, whichever is later.

At least monthly, an employer must provide to each employee an electronic or written statement showing:

  • The employee's name;
  • The employer's name;
  • The statement's date;
  • The statement period;
  • The number of hours worked within the geographic boundaries of the City during the statement period;
  • The amount of paid sick time accrued during the statement period;
  • The amount of paid sick time used during the statement period; and
  • The amount of the employee's available earned paid sick time.

An employer may choose a reasonable system for providing this notification, including on pay stubs (e.g., regular payroll statements) or in an online system where employees can access the information.

Dallas, Texas Code of Ordinances Sec. 20-7; Rule 10; Rule 11.

Recordkeeping Requirements

An employer must maintain records establishing the amount of earned paid sick time accrued by, used by and available to each covered employee. Dallas, Texas Code of Ordinances Sec. 20-7. According to Rule 10, records must be kept for at least three years.

Prohibited Acts

An employer may not transfer, demote, terminate, suspend, reduce hours or directly threaten these actions against an employee for:

  • Requesting or using earned paid sick time;
  • Reporting or attempting to report a violation of the law;
  • Participating or attempting to participate in an investigation or administrative proceeding under the law; or
  • Otherwise exercising any rights provided by the law.

Dallas, Texas Code of Ordinances Sec. 20-8.

Retaliation may include:

  • Considering use of paid sick time in performance reviews or setting wages;
  • Disciplining or terminating employees for using accrued paid sick time;
  • Reporting or threatening to report an employee or employee's family member to law enforcement in connection with the use of paid sick time; and
  • Discouraging or denying employee use of accrued paid sick time.

However, an employer may take reasonable action (e.g., discipline) when an employee uses paid sick leave for a reason not allowed under the ordinance.

Rule 12.

Interaction With Other Laws and Policies

Other leave policies. An employer may provide paid leave benefits that exceed the ordinance's requirements. Nothing in the ordinance or the rules should be construed to discourage or prohibit an employer from adopting or retaining a paid sick leave policy that is more generous legally required.

An employer that makes paid time off available under conditions that meet the ordinance's purpose, accrual, yearly cap and usage requirements is not required to provide additional paid sick time to employees.

The ordinance does not require an employer to provide additional earned paid sick time to an employee who has used paid time off, which meets the law's requirements, for a purpose not specified under the law.

Dallas, Texas Code of Ordinances Sec. 20-6; Rule 13.

Other leave laws. The ordinance does not address the interaction of earned paid sick time with other applicable federal, state and local laws.

Collective bargaining agreements. A collective bargaining agreement (CBA) may explicitly modify the yearly cap of earned paid sick time for the employees covered by the CBA. Dallas, Texas Code of Ordinances Sec. 20-4(e).

Enforcement

A complaint must be filed with the City within two years from the date of the alleged violation. The City will investigate complaints, including anonymous ones.

In its investigation, the City may issue subpoenas to compel the attendance of a witness or the production of materials or documents in order to obtain relevant information and testimony. Refusal to appear or to produce any document or other evidence after receiving a subpoena is a violation of the law and subject to sanctions. Before issuing a subpoena, the City will seek the voluntary cooperation of an employer to timely obtain relevant information and testimony in connection with a complaint investigation.

The City may inform employees of any investigation of a complaint at their worksite alleging a violation of the law.

Dallas, Texas Code of Ordinances Sec. 20-9; Dallas, Texas Code of Ordinances Sec. 20-10.

After investigating the complaint, if the City finds that a violation has occurred, it may:

  • Assess a civil penalty up to $500 against the employer for each violation (employer will receive a written notice of the violation and penalty assessed); and
  • Seek voluntary compliance from the employer to remedy any violation before collecting any civil penalty. If voluntary compliance is not achieved within 10 business days following the employer's receipt of the written violation notice, the employer may be liable for any assessed civil penalty.

Civil penalties may be assessed for violations that occur on or after April 1, 2020, except a civil penalty for retaliation may be assessed at any time after August 1, 2019.

Dallas, Texas Code of Ordinances Sec. 20-11.

Action Steps

Before the law takes effect, an employer should:

  • Review and revise, if necessary, paid sick or other leave policies and procedures to ensure they meet the law's requirements;
  • Update its employee handbook to notify employees of their rights under the law;
  • Post the required notice;
  • Ensure timekeeping, payroll and benefits systems properly calculate and track accrued and used paid sick leave. If a third-party payroll processor is used, ensure it is aware of and complies with the law's requirements; and
  • Train supervisory and managerial employees, as well as HR and payroll personnel, on the law's requirements.

Future Developments

Amendments to Jury Duty Protections

Effective September 1, 2019, Texas amends its jury duty leave provisions. +2019 Bill Text TX H.B. 504; +2019 Bill Text TX S.B. 370. The protections have been expanded from termination to also include:

  • Threats of termination;
  • Intimidation; or
  • Coercion.

In addition, the protections have been expanded from jury service to include:

  • Attendance or scheduled attendance in connection with the service in any court in the US; and
  • Grand jury service.

For more details see Jury Duty: Texas.

Austin Paid Sick Leave

Austin employers must provide paid sick and safe leave to eligible employees under the earned sick time ordinance.

Note: The ordinance was set to become effective on October 1, 2018 (October 1, 2020, for employers with five or fewer employees). However, it has been blocked from going into effect while its legality is contested in the courts. Most recently, in November 2018, a state appeals court ordered that the ordinance be temporarily enjoined. The ultimate fate of the ordinance remains unknown.

Covered Employers

An employer includes any person, company, corporation, firm, partnership, labor organization, nonprofit organization or association that pays an employee to perform work for an employer and exercises control over the employee's wages, hours and working conditions. It does not include:

  • The US;
  • A corporation wholly owned by the US government;
  • The state or a state agency; and
  • A political subdivision of the state or other agency that cannot be regulated by city ordinance.

Austin, Texas Code of Ordinances Sec. 4-19-1.

Eligible Employees

An employee is an individual who performs at least 80 hours of work for pay within the City of Austin in a calendar year for an employer, including work performed through the services of a temporary or employment agency. An employee does not include:

  • A properly classified independent contractor according to Form C-8; and
  • Unpaid interns.

Austin, Texas Code of Ordinances Sec. 4-19-1.

Qualifying Reasons for Leave

Earned sick time may be used for the following reasons:

  • The employee's or a family member's physical or mental illness, injury or health condition or need for preventative medical or health care; and
  • If the employee or a family member is a victim of domestic abuse, sexual assault or stalking, and the employee needs to:
    • Seek medical attention;
    • Seek relocation;
    • Obtain services from a victim services organization; or
    • Participate in legal or court-ordered action.

Austin, Texas Code of Ordinances Sec. 4-19-2.

A covered family member includes an employee's:

  • Spouse;
  • Child;
  • Parent; and
  • Any other individual related by blood or whose close association with the employee is the equivalent of a family relationship.

Austin, Texas Code of Ordinances Sec. 4-19-1.

Accrual and Use of Leave

Accrual. Employees accrue one hour of earned sick time for every 30 hours worked in Austin. An employer may cap employee accrual in a calendar year based on the employer's size:

  • 64 hours, for employers with 16 or more employees at any time during the preceding 12 months (excluding family members); and
  • 48 hours for employers with 15 or fewer employees at any time during the preceding 12 months (excluding family members).

Accrual begins October 1, 2018 (October 1, 2020, for employers with five or fewer employees), or when employment begins, whichever is later.

Earned sick time accrues in one-hour increments only. It does not accrue in fractions of an hour.

Use. Earned sick time may be used as soon as it accrues. However, an employer may restrict an employee from using sick leave in the employee's first 60 days of employment if the employer establishes that the employee's term of employment is at least one year.

An employer may also restrict employees to using earned sick time on a maximum of eight days in a calendar year.

In addition, an employer has the right to inform employees that leave requested in excess of the employee's available leave time will be unpaid.

Employees may not be required to find a replacement worker to cover the hours of earned sick time as a condition of using earned sick time.

An employer may grant earned sick time prior to accrual by an employee.

An employer may also establish a policy allowing employees to voluntarily exchange hours or trade shifts or a program that provides incentives to employees to exchange hours or trade shifts.

Carryover. All available earned sick time up to the yearly cap must be carried over to the following year, unless sick time is frontloaded.

Donation. An employer may establish a policy in which employees may donate unused accrued sick leave to another employee.

Austin, Texas Code of Ordinances Sec. 4-19-1; Austin, Texas Code of Ordinances Sec. 4-19-2; Austin, Texas Code of Ordinances Sec. 4-19-3.

Frontloading

Instead of using the accrual method, an employer may frontload sick time by making at least the yearly cap of earned sick time available to an employee at the beginning of the year under the purpose and usage requirements of the law. An employer that chooses to frontload sick time are not required to carry over sick time for that year. Austin, Texas Code of Ordinances Sec. 4-19-2.

Compensation

Earned sick time must be paid in an amount equal to what the employee would have earned if the employee had worked the scheduled work time, excluding any overtime premium, tips or commissions, but no less than the state minimum wage. Austin, Texas Code of Ordinances Sec. 4-19-2.

Changes in Employment

An employee who is rehired six months following separation of employment from the same employer may use any earned sick leave available to the employee at the time of separation.

An employee's transfer to a different facility, location, division or job position with the same employer may not affect the amount of or right to use earned sick time.

When one employer acquires the controlling interest in another employer (or a recognized division of another employer), the successor must provide to an employee who was employed by the predecessor at the time of an acquisition and hired by the successor at the time of the acquisition all earned sick time available to the employee immediately before the acquisition.

Austin, Texas Code of Ordinances Sec. 4-19-2.

Employee Notice and Verification Requirements

An employer must provide earned sick time if an employee has available earned sick time and makes a timely request before his or her scheduled work time. An employer may not prevent an employee from using earned sick time for an unforeseeable absence for a qualifying reason.

An employer may adopt reasonable verification procedures to establish that an employee's request for earned sick time is for a qualifying reason if the employee requests leave for more than three consecutive workdays.

Austin, Texas Code of Ordinances Sec. 4-19-2.

Employer Notice Requirements

An employer must display a sign describing the law's requirements in all appropriate languages in a conspicuous place or places where notices to employees are customarily posted. An employer is not required to post such signage until the City of Austin makes the sign available publicly on its website. Austin, Texas Code of Ordinances Sec. 4-19-4.

An employer that provides an employee handbook to its employees must include in the handbook a notice of employee rights and remedies under the law.

At least monthly, an employer must provide to each employee an electronic or written statement showing the amount of the employee's available earned sick time.

Austin, Texas Code of Ordinances Sec. 4-19-2.

Recordkeeping Requirements

An employer must maintain records establishing the amount of earned sick time accrued and used by each covered employee. Clarification on the length of retention is expected. Austin, Texas Code of Ordinances Sec. 4-19-2.

Prohibited Acts

An employer may not transfer, demote, terminate, suspend, reduce hours or directly threaten these actions against an employee for:

  • Requesting or using earned sick time; or
  • Reporting a violation or participating in an administrative proceeding under the law.

Austin, Texas Code of Ordinances Sec. 4-19-5.

Interaction With Other Laws and Policies

Other leave policies. An employer may provide paid leave benefits that exceed the law's requirements. An employer that makes paid time off available under conditions that meet the law's accrual, purpose and usage requirements is not required to provide additional earned sick time to employees.

The law does not require an employer to provide additional earned sick time to an employee who has used paid time off, which meets the law's requirements, for a nonqualifying reason under the law.

Austin, Texas Code of Ordinances Sec. 4-19-3.

Other leave laws. The ordinance does not address the interaction of earned sick time with other applicable federal, state and local laws.

Collective bargaining agreements. A collective bargaining agreement (CBA) may explicitly modify the yearly cap of earned sick time for the employees covered by the CBA. Austin, Texas Code of Ordinances Sec. 4-19-2.

Enforcement

A complaint must be filed with the City of Austin Equal Employment Opportunity/Fair Housing Office (EEO/FHO) within two years from the date of the alleged violation.

During an investigation, the EEO/FHO may subpoena relevant information that is necessary to determine whether a violation has occurred. The subpoena will be directed to a person with knowledge or information relevant to the complaint or to a custodian of records relevant to the complaint. The person must either produce the records or provide the testimony identified in the subpoena at a specific place and time. The time will not be earlier than 10 business days from the date the subpoena is served. Failure to comply with the subpoena is a Class C misdemeanor.

The EEO/FHO may inform employees of any investigation of a complaint at their worksite alleging a violation of the law.

After investigating the complaint, if the EEO/FHO finds that a violation has occurred, it may:

  • Assess a civil penalty up to $500 against the employer for each violation (employer will receive a written notice of the assessment); and
  • Seek voluntary compliance from the employer to remedy any violation. If voluntary compliance is not achieved within 10 business days following the employer's receipt of the written civil penalty assessment, the employer may be liable to the City for the amount of the assessed civil penalty.

Austin, Texas Code of Ordinances Sec. 4-19-6; Austin, Texas Code of Ordinances Sec. 4-19-7.

For violations that occur after the effective date, but before June 1, 2019, the EEO/FHO will issue a notice to the employer that a civil penalty may be assessed for violations that occur after June 1, 2019. However, civil penalties for retaliation may be assessed for a violation at any time after the effective date.

Action Steps

Before the law takes effect, an employer should:

  • Review and revise, if necessary, paid sick or other leave policies and procedures to ensure they meet the law's requirements;
  • Update its employee handbook to notify employees of their rights under the law;
  • Post the required notice when it becomes available;
  • Ensure timekeeping, payroll and benefits systems properly calculate and track accrued and used paid sick leave. If a third-party payroll processor is used, ensure it is aware of and complies with the law's requirements; and
  • Train supervisory and managerial employees, as well as HR and payroll personnel, on the law's requirements.

San Antonio Paid Sick Leave

San Antonio employers must provide paid sick and safe leave to eligible employees under the Earned Paid Sick Time Ordinance.

Note: Implementation of San Antonio's ordinance has been delayed until December 1, 2019. The ordinance was originally scheduled to take effect on August 1, 2019, for employers with six or more employees. However, a lawsuit was filed in state court that challenges the City of San Antonio's authority to enact the ordinance. The judge in that case approved a proposed joint order to delay implementation of the ordinance for employers with six or more employees.

The ordinance takes effect for employers with five or fewer employees on August 1, 2021. The order is silent in regard to this date.

Covered Employers

An employer includes any person, company, corporation, firm, partnership, labor organization, nonprofit organization or association that pays an employee to perform work for an employer and exercises control over the employee's wages, hours and working conditions. It does not include:

  • The US;
  • A corporation wholly owned by the US government;
  • The state or a state agency; and
  • The City of San Antonio or any other political subdivision of the state or other agency that cannot be regulated by city ordinance.

San Antonio, Texas Code of Ordinances Sec. 15-269.

Eligible Employees

An employee is an individual who performs at least 80 hours of work for pay within the City of San Antonio in a year for an employer, including work performed through the services of a temporary or employment agency.

A year means a regular and consecutive 12-month period as determined by the employer.

An employee does not include:

  • A properly classified independent contractor according to Form C-8; and
  • Unpaid interns.

San Antonio, Texas Code of Ordinances Sec. 15-269.

Qualifying Reasons for Leave

Earned paid sick time may be used for the following reasons:

  • The employee's or a family member's physical or mental illness, injury or health condition or need for preventative medical or health care; and
  • The employee or a family member is a victim of domestic abuse, sexual assault or stalking, and needs to:
    • Seek medical attention;
    • Seek relocation;
    • Obtain services from a victim services organization; or
    • Participate in legal or court-ordered action.

San Antonio, Texas Code of Ordinances Sec. 15-272(c)(2).

A covered family member includes an employee's:

  • Spouse;
  • Child;
  • Parent; and
  • Any other individual related by blood or whose close association with the employee is the equivalent of a family relationship.

San Antonio, Texas Code of Ordinances Sec. 15-269.

Accrual and Use of Leave

Accrual. Employees accrue one hour of paid sick time for every 30 hours worked in San Antonio. An employer may place a yearly cap on accrual based on the employer's size:

  • 64 hours, for employers with 16 or more employees at any time during the preceding 12 months (excluding family members); and
  • 48 hours for employers with 15 or fewer employees at any time during the preceding 12 months (excluding family members).

Accrual begins December 1, 2019 (August 1, 2021, for employers with five or fewer employees), or when employment begins, whichever is later.

Earned paid sick time accrues in one-hour increments only. It does not accrue in fractions of an hour, unless the employer chooses to allow it.

Use. Earned paid sick time may be used as soon as it accrues. However, an employer may restrict an employee from using paid sick leave in the employee's first 60 days of employment if the employer establishes that the employee's term of employment is at least one year.

An employer may also restrict employees to using earned sick time on a maximum of eight days in a year.

In addition, an employer has the right to inform employees that leave requested in excess of the employee's available leave time will be unpaid.

Employees may not be required to find a replacement worker to cover the hours of earned paid sick time as a condition of using that time.

An employer may grant earned paid sick time prior to accrual by an employee.

An employer may also establish a policy allowing employees to voluntarily exchange hours or trade shifts or a program that provides incentives to employees to exchange hours or trade shifts.

Carryover. All available earned paid sick time up to the yearly cap must be carried over to the following year, unless sick time is frontloaded.

Donation. An employer may permit employees to donate unused accrued paid sick leave to another employee.

San Antonio, Texas Code of Ordinances Sec. 15-272; San Antonio, Texas Code of Ordinances Sec. 15-273(c).

Frontloading

Instead of using the accrual method, an employer may frontload earned paid sick time by making at least the yearly cap of earned paid sick time available to an employee at the beginning of the year under the purpose and usage requirements of the law. An employer that chooses to frontload earned paid sick time are not required to carry over sick time for that year. San Antonio, Texas Code of Ordinances Sec. 15-272(b)(4).

Compensation

Earned paid sick time must be paid in an amount equal to what the employee would have earned if the employee had worked the scheduled work time, excluding any overtime premium, tips or commissions, but no less than the state minimum wage. San Antonio, Texas Code of Ordinances Sec. 15-272(a).

Changes in Employment

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

An employee's transfer to a different facility, location, division or job position with the same employer may not affect the amount of or right to use earned paid sick time.

When one employer acquires the controlling interest in another employer (or a recognized division of another employer), the successor must provide to an employee who was employed by the predecessor at the time of an acquisition and hired by the successor at the time of the acquisition all earned paid sick time available to the employee immediately before the acquisition.

San Antonio, Texas Code of Ordinances Sec. 15-272.

Employee Notice and Verification Requirements

An employer must provide earned paid sick time if an employee has available earned paid sick time and makes a timely request for use of such time before his or her scheduled work time. An employer may not prevent an employee from using earned paid sick time for an unforeseeable absence for a qualifying reason. San Antonio, Texas Code of Ordinances Sec. 15-272(c)(4).

An employer may adopt reasonable verification procedures to establish that an employee's request for earned paid sick time is for a qualifying reason if the employee requests leave for more than three consecutive workdays. An employer 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 requesting earned paid sick time. San Antonio, Texas Code of Ordinances Sec. 15-272(c)(3).

Employer Notice Requirements

If the Director of the San Antonio Metropolitan Health District (Department), or an authorized designee, makes such signage publicly available on the Department's website, an employer must display a sign describing the ordinance's requirements in a conspicuous place or places where notices to employees are customarily posted. The signs displayed will be in English and other languages, as determined by the Director.

An employer that provides an employee handbook to its employees must include in the handbook a notice of employee rights and remedies under the law.

At least monthly, an employer must provide to each employee an electronic or written statement showing the amount of the employee's available earned paid sick time.

San Antonio, Texas Code of Ordinances Sec. 15-274.

Recordkeeping Requirements

An employer must maintain records establishing the amount of earned paid sick time accrued and used by each covered employee. Clarification on the length of retention is expected. San Antonio, Texas Code of Ordinances Sec. 15-274(c).

Prohibited Acts

An employer may not transfer, demote, terminate, suspend, reduce hours or directly threaten these actions against an employee for:

  • Requesting or using earned paid sick time;
  • Reporting or attempting to report a violation of the law;
  • Participating or attempting to participate in an administrative proceeding under the law or
  • Otherwise exercising any rights provided by the law.

San Antonio, Texas Code of Ordinances Sec. 15-275.

Interaction With Other Laws and Policies

Other leave policies. An employer may provide paid leave benefits that exceed the ordinance's requirements. An employer that makes paid time off available under conditions that meet the ordinance's purpose, accrual, yearly cap and usage requirements is not required to provide additional paid sick time to employees.

The ordinance does not require an employer to provide additional earned paid sick time to an employee who has used paid time off, which meets the law's requirements, for a nonqualifying reason under the law.

San Antonio, Texas Code of Ordinances Sec. 15-273.

Other leave laws. The ordinance does not address the interaction of earned paid sick time with other applicable federal, state and local laws.

Collective bargaining agreements. A collective bargaining agreement (CBA) may explicitly modify the yearly cap of earned paid sick time for the employees covered by the CBA. San Antonio, Texas Code of Ordinances Sec. 15-272(b)(5).

Enforcement

A complaint must be filed with the San Antonio Metropolitan Health District (Department) within two years from the date of the alleged violation.

An employer is required to timely provide relevant information and testimony when requested by the Department for the purposes of determining compliance with the law. Relevant information and testimony includes, and is limited to, only the information necessary to determine whether a violation of the law has occurred.

The Department may inform employees of any investigation of a complaint at their worksite alleging a violation of the law.

San Antonio, Texas Code of Ordinances Sec. 15-276.

After investigating the complaint, if the Department finds that a violation has occurred, it may:

  • Assess a civil penalty up to $500 against the employer for each violation (employer will receive a written notice of the violation and penalty assessed); and
  • Seek voluntary compliance from the employer to remedy any violation before collecting any civil penalty. If voluntary compliance is not achieved within 10 business days following the employer's receipt of the written violation notice, the employer may be liable for any assessed civil penalty.

Civil penalties may be assessed for violations that occur on or after April 1, 2020, except a civil penalty for retaliation may be assessed at any time after August 1, 2019.

San Antonio, Texas Code of Ordinances Sec. 15-278.

Action Steps

Before the law takes effect, an employer should:

  • Review and revise, if necessary, paid sick or other leave policies and procedures to ensure they meet the law's requirements;
  • Update its employee handbook to notify employees of their rights under the law;
  • Post the required notice when it becomes available;
  • Ensure timekeeping, payroll and benefits systems properly calculate and track accrued and used paid sick leave. If a third-party payroll processor is used, ensure it is aware of and complies with the law's requirements; and
  • Train supervisory and managerial employees, as well as HR and payroll personnel, on the law's requirements.

Additional Resources

Texas Supplement: Table of Contents

Dallas Earned Paid Sick Time FAQs