Global Compliance Desk – San Antonio, Texas

Mandating Sick & Safe Leave Benefit in San Antonio

The San Antonio, Texas City Council has approved revisions to the city’s sick and safe leave ordinance number 2019-10-03-0795, which is now scheduled to take effect on December 1, 2019. Please see the revisions below:

Definition of Employee

• Employee means an individual who performs work for pay within the city of San Antonio, Texas or an employer including work performed through the services of a temporary or employment agency. An employee who is typically based outside of the city (the employee works outside the geographical boundaries of the city of San Antonio for more than 50% of work hours in a year) and performs work in the city on an occasional basis is covered by this article if the employee performs more than 240 hours of work in the city within a year. An employee does not mean an individual who is an independent contractor according to title 40, section 821.5 of the Texas Administrative Code (TAC). An employee does not mean an unpaid intern.

Earlier, in the original ordinance, eligibility was limited to individuals who perform at least 80 hours of work in a year. The original ordinance would have required larger businesses to provide up to 64 hours of leave while smaller businesses would have been required to provide up to 48 hours of leave.

Leave Accrual Duration

• While sick and safe leave begins to accrue from the first working day for new employees, employers may require that new employees wait up to 90 days before using any accrued time. Employers subject to the Railway Labor Act are exempt from coverage under the law.

• Accrual, Carry-Over & Use Caps – All San Antonio employers now must allow employees to accrue up to (or front load), carry-over (unless frontloading), and/or use 56 leave hours in a year.

Earlier, in the original ordinance, the waiting period for new employees was capped at 60 days and was only applicable if the employer could establish that the employee’s term of employment was at least one year.

Definition of Covered Family Member

• The definition of a covered family member under the ordinance will now include an employee’s: (i) spouse, domestic partner, or different-sex or same-sex significant other; (ii) any other family member within the second degree of consanguinity or affinity; and a member of the covered employee’s household, as well as a minor’s parents, regardless of the sex or gender of either parent. In addition, the concept of parenthood “is to be liberally construed without limitation as encompassing legal parents, foster parents, same-sex parents, step-parents, those serving in loco parentis, and other persons operating in caretaker roles.

Earlier, in the original ordinance, family members meant an employee’s spouse, child, the parent or any other individual related by blood or whose close association with the employee is the equivalent of a family relationship.

Modification of Baseline Amount

• A modified accrual schedule for sick and safe leave will apply across all businesses, regardless of size.  Specifically, employees will be eligible to accrue one hour of paid sick and safe leave for every 30 hours worked, up to 56 hours per year.

Earlier, in the original ordinance,  larger businesses were required to provide up to 64 hours of leave while smaller businesses would have been required to provide up to 48 hours of leave.

Medical Verification Document

• An employer may not request medical documentation or other verification of the use of paid sick or safe leave under the ordinance until an employee’s fourth consecutive day of using leave. Employers may also request documentation where they reasonably suspect abuse of sick and safe leave.

Earlier, in the original ordinance, documentation was allowed only after 3 consecutive days of absence.

Other Amendments

• An employer is not required to pay out the balance of sick and safe leave to an employee upon separation from employment. However, if an employer chooses to pay out the balance of sick and safe leave to an employee upon separation from employment, the employer is not required to reinstate any sick and safe leave upon the rehiring of the employee.
• Employers who obtain medical information as a result of an employee’s request for leave must keep such medical information confidential.
• The revised ordinance defines that sick and safe leave under the ordinance “is a fringe benefit as defined by the Texas Labor Code and not a wage or a component of salary.” To that end, the ordinance “does not require the payment of sick and safe leave upon separation from employment and it does not require that sick and safe leave be calculated as an increase to salary or wages of an employee.”

While the ordinance is now slated to take effect on December 1, 2019, penalties will not be assessed until April 1, 2020, except in cases of retaliation against an employee.