In the early hours of Feb. 16, the Austin City Council passed a new ordinance on earned sick time
that affects employers in Austin, Texas. The ordinance will not take effect until Oct. 1, and is likely to be challenged in court almost immediately. Nevertheless, local employers should be aware of the basic requirements of the law so that they can prepare for the possibility of enforcement this fall.
Likewise, employers in other cities should keep informed on this issue as sick leave laws are becoming more prevalent
across the country. Below are the answers to some frequently asked questions about the new ordinance.
When does the ordinance take effect?
- The ordinance takes effect on Oct. 1 for all employers with six or more employees.
- For employers who have had five or fewer employees in the preceding 12 months, the ordinance is not effective until Oct. 1, 2020.
Whom does the ordinance affect?
- Employees in the city of Austin are affected. "Employee" is defined as a person who performs at least 80 hours of work in a calendar year for an employer. Employees do not include independent contractors or unpaid interns.
- Employers in the city of Austin are also affected. "Employer" is defined as "any person, company, corporation, firm, partnership, labor organization, non-profit organization or association" that pays an employee to perform work and exercises control over the employee.
What does the ordinance require?
- Employees earn one hour of sick time for every 30 hours worked.
- 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, but only if
the employer establishes that the employee's term of employment is at least one year.
What qualifies as sick time?
- Time off needed for an employee's own health condition, physical or mental illness, or injury, or that of the employee's blood-related family member.
- Time off needed 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.
- Employees must make a timely request for the use of earned sick time before their scheduled work time with potential exceptions for unforeseen emergencies.
How much sick time can employees accrue and use?
- Any employer with more than 15 employees (not including family member employees) in the preceding 12 months must provide up to 64 accrued hours per year.
- Any employer with no more than 15 employees (not including family member employees) in the preceding 12 months must provide up to 48 accrued hours per year.
- Earned sick time carries over to the following year. However, an employer is not required to allow an employee to use more than the annual cap (either 48 or 64 hours, depending on employer size) per year.
- Employers do not have to allow employees to utilize earned sick time on more than eight calendar days in a given calendar year.
Which records must employers maintain, provide or display?
- Employers must provide to each employee with a monthly statement showing the amount of the employee's available earned sick time. Employers must also keep records to show the amount of sick time accrued by each employee.
- Employers that provide employee handbooks must include a notice to employees about the contents of the ordinance.
- Once the City of Austin provides signage on its website, employers must display a sign about the ordinance in English and Spanish in a conspicuous place.
Are there other requirements?
- Retaliation is prohibited. 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 or for reporting a violation or participating in an administrative proceeding related to the ordinance. Civil penalties for retaliation may be assessed as early as Oct. 1.
- Employees who are rehired within six months following separation must have their prior sick time reinstated.
How will the ordinance be enforced?
- The ordinance will be enforced by the City of Austin Equal Employment Opportunity and Fair Housing Office (EEO/FHO).
- Civil penalties for substantiated violations may be assessed up to $500 per violation. The EEO/FHO may choose to offer an employer 10 business days to voluntarily comply with the ordinance before collecting a civil penalty.
- Civil penalties will not be assessed for substantive ordinance violations until after June 1, 2019.
Corey E. Tanner is an attorney with Ogletree Deakins in Austin, Texas. © Ogletree Deakins. All rights reserved. Reposted with permission.
