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Legal Update

Nov 7, 2019

If Pain, Yes Gain—Part 75: San Antonio Releases “Final” Sick & Safe Leave Ordinance

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Seyfarth Synopsis: Following an announcement and the release of FAQs, the City of San Antonio released an official copy of the amended San Antonio Sick and Safe Leave Ordinance (“SSLO”) late last month along with an updated SSLO poster. As of now, the SSLO effective date remains December 1, 2019. A hearing on whether to enjoin the SSLO is set for today.

When the SSLO was passed last month, the city immediately released guidance and announced a number of information sessions focused on key changes from the original San Antonio paid sick leave (“PSL”) ordinance. As expected, shortly after the official SSLO was released, a hearing on the plaintiff companies’ renewed motion to enjoin the PSL ordinance appeared on the trial court’s docket. The hearing will take place today, November 7, 2019.

As employers have learned throughout 2018 and 2019, anything is possible with the Texas PSL bug. Possibilities for the SSLO include, but are not limited to, (a) the trial court staying the ordinance and litigation due to the likelihood that the Texas Supreme Court hears similar arguments over the Austin ordinance in the coming months, (b) the trial court or an appellate court ruling that the SSLO is unconstitutional on the same grounds as those relied on by the Texas Court of Appeals for the Third District to enjoin the Austin ordinance, and (c) a protracted litigation with no dispositive ruling allowing the SSLO to take effect as occurred with the Dallas PSL ordinance.

With the city preparing to enforce its revised PSL ordinance and no guarantee of judicial intervention prior to the ordinance’s December 1, 2019 effective date, here are some of the highlights from the revised mandate.

  • Grace Period: As with the original ordinance, the SSLO contains a “grace period” until April 1, 2020, during which the San Antonio Department of Metropolitan Health may issue a notice that penalties may be assessed for violations that occur after April 1, 2020. However and importantly, penalties for retaliation may be assessed as of the revised ordinance’s effective date, and the SSLO FAQs state that accrual or frontloads of PSL must begin on the SSLO’s effective date.
  • Eligible Employees: “Employee” is defined as an individual who performs work for pay within the City of San Antonio for an employer including work performed through the services of a temporary or employment agency. Employees who work outside city boundaries for more than 50% of their work hours in a year are eligible to receive PSL if they perform more than 240 hours of work in the city within a year.
    • Exclusions: The SSLO excludes independent contractors and unpaid interns from the definition of “Employee.” The SSLO also states that a written contract between an employer and labor organization representing employees pursuant to state or federal law allowing collective bargaining determines the benefits provided to employees and is not subject to the SSLO’s terms.
  • Covered Employers: The SSLO broadly defines “Employer” as “any person, company, corporation, firm, partnership, labor organization, non-profit 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.” In addition to federal, state, and local government and agency exclusions, the definition does not include “any person, company, corporation, or firm subject to, or with employees subject to the Railway Labor Act.”
  • Accrual of PSL: Employees will be entitled to begin accruing PSL at the later of the start of their employment or the SSLO’s effective date. Employers must allow PSL to accrue at a rate of at least one hour of PSL for every 30 hours worked in the City of San Antonio. Despite previous ambiguity from the SSLO FAQs, it appears the SSLO will require all employers to impose an annual accrual cap of 56 hours.[1]
  • Usage Waiting Period and Cap: In a major departure from the original San Antonio PSL ordinance, the SSLO will allow employers “that have established an employment benefit eligibility period prior to the effective date of the [SSLO] for all employees” to restrict an employee from using PSL during that period, provided the period may not exceed 90 days from the start of employment. Additionally, the SSLO permits a 56 hour annual usage limit.
  • Frontloading and Carryover: The SSLO confirms that employers that frontload 56 hours of PSL to employees at the start of each year (as is permitted as an alternative to accrual) can avoid year-end carryover obligations. Otherwise, employees must be permitted to carry over up to 56 hours of accrued, unused PSL per year.
  • Reasons for Use: The official copy of the SSLO confirms that the reasons for use remain unchanged from the original San Antonio PSL ordinance. As a reminder, such reasons include: (1) The employee’s physical or mental illness or injury, preventative medical or health care or health condition; (2) The employee’s need to care for a family member’s physical or mental illness, preventative medical or health care, injury or health condition; and (3) The employee’s or their family member’s need to seek medical attention, seek relocation, obtain services of a victim services organization or participate in legal or court ordered action related to an incident of victimization from domestic abuse, sexual assault, or stalking involving the employee or the employee’s family member.
  • Covered Family Members: “Family member” is defined as (1) Spouses, domestic partners, and both different-sex and same sex significant others; any other family member within the second degree of consanguinity or affinity; or a member of the employee’s household, all as they relate to the employee; and (2) A minor’s parents, regardless of the sex or gender of either parent. The SSLO adds “[t]he concept of parenthood is to be liberally construed without limitation as encompassing legal parents, foster parents, same-sex parent, step-parents, those serving in loco parentis, and other persons operating in caretaker roles.”
  • Existing PTO Policies: The official copy confirms that employers that have vacation, PTO, or other leave policies providing the minimum amount of leave and allowing the leave to be used for protected reasons need not provide additional PSL to comply with the SSLO if the leave is made available “in a manner consistent with [the SSLO].” This provision holds even if “the employee has used paid time off that meets the requirements of [the SSLO] for a purpose not specified in [the SSLO].”
  • Payment of PSL: Employers must pay PSL at the rate of pay that the employee would have earned if the employee had worked the scheduled time, exclusive of any overtime premium, tips, or commissions, but no less than the state minimum wage.
  • Employee Notice of PSL Use: As with the original San Antonio PSL ordinance, under the SSLO, employers must allow employees to use available PSL if the employee makes a timely request to use the leave before their scheduled work time. That being said, employers cannot prevent employees from using available PSL for unforeseeable qualifying absences. As a reminder, the FAQs provide that employees may request to use PSL at any point prior to the start of a shift or during a shift as long as they do so for protected purposes.
  • Documentation: Under the SSLO, employers cannot request verification until the employee’s fourth consecutive day of PSL use. Employees may choose which verification they will provide in response to an employer’s request for documentation, and such verification may include a written statement that the employee took sick or safe leave provided by the SSLO. In the event of failure to comply with these verification requirements, per the SSLO employers are permitted to address the failure with their established disciplinary processes and procedures. Employers suspecting PSL abuse may request verification, but are limited by the confines or federal and state law, or “other source.”
  • Payout Upon Separation & Reinstatement Upon Re-hire: The SSLO confirms employers will not be required to pay out employees’ earned, unused PSL balances upon separation from employment. Employers that choose not to cash out the unused PSL must reinstate the same amount of PSL an employee had available at the time of separation if the employee is rehired within 6 months of separation.
  • Monthly Notice to Employees: On no less than a monthly basis, an employer must provide electronic or written notice to each employee showing the amount of the employee’s available PSL or, as added by the SSLO, the PTO balance “that can be used in the same manner as [PSL].”
  • Posting and Handbook Notice: Despite silent guidance on this point when the SSLO was first announced, as expected, the SSLO contains notice and posting requirements. They remain the same as under the original ordinance: (1) Employers who provide an employee handbook to their workers must include a notice of employee rights and remedies under the SSLO in the handbook; and (2) If the Director of the San Antonio Metropolitan Health District makes a model SSLO poster available on its website, the employer must display the poster in a conspicuous place where notices to employees are customarily posted. The poster must be displayed in English and other languages determined by the Director.
    • Updated Poster: Thus far, an updated English version of the SSLO poster has been made available here.
  • Retaliation Prohibition: The SSLO states with particularity that “[a]n employer may not transfer, demote, discharge, suspend, reduce hours or directly threaten these actions against an employee because that employee: requests or uses [PSL] consistent with [the SSLO];” reports or attempts to report an SSLO violation; participates or attempts to participate in an investigation or proceeding under the SSLO; or otherwise exercises any rights afforded by the SSLO.

As the Texas PSL saga continues to bug employers, here are some steps to consider:

  • Monitor the city’s website for the release of further guidance, and required notices and posters.
  • Monitor judicial developments in the San Antonio and Austin PSL lawsuits.
  • Review existing sick leave policies and either implement new policies or revise existing policies, as well as any related attendance, conduct, anti-retaliation, and discipline policies.

With the paid sick leave landscape continuing to expand and grow in complexity, companies should reach out to their Seyfarth contact for solutions and recommendations on addressing compliance with this law and sick leave requirements generally. To stay up-to-date on Paid Sick Leave developments, click here to sign up for Seyfarth’s Paid Sick Leave mailing list. Companies interested in Seyfarth’s paid sick leave laws survey should reach out to sickleave@seyfarth.com.

[1] The SSLO refers to 56 hours of PSL as the “baseline amount” employers must allow employees to accrue up to or provide as a lump grant each year, must allow employees to carry over PSL up to at the end of each year, and can limit employees’ PSL use to each year. Notably, the SSLO only provides 56 hours as the baseline amount “for full time employees.” However, it is silent on whether prorating this “baseline amount” is permissible for part-time employees and/or new hires. It is therefore unclear whether a different annual accrual, carryover, and/or usage cap for non-full-time employees or new hires was intended by the city.