Hutcheson Bowers Attorneys at Law in Austin

Hutcheson Bowers LLLP Attorneys at Law

Austin Passes Paid Sick Leave Ordinance

On February 16, 2018, the Austin City Council passed an ordinance establishing mandatory paid sick leave for employees who work at least 80 hours within Austin in a calendar year. Effective October 1, 2018, a business employing 15 or more workers will be required to offer 8 days of paid sick leave a year, while companies employing 6 to 15 people will be required to provide 6 days. Businesses with 5 or fewer employees will have until October 1, 2020 to begin offering paid sick days.

Employer Coverage: Employers must provide sick leave to any employee who works at least 80 hours within a calendar year in Austin. Keep in mind that even an employer who operates or is headquartered outside the Austin city limits must still offer sick leave to its employees working in Austin. There are some differences in how the law applies based on size of the employer. For employers with 5 or fewer employees, the law takes effect on October 1, 2020. For employers with 15 or fewer employees, the 64 hour (8 day) required accrual is reduced to 48 hours (6 days) annually.

Accrual/Carryover: Covered employees must accrue sick leave at the rate of one hour for every 30 hours worked, up to 64 hours (8 days) annually (48 hours (6 days) for employers with 15 or fewer employees). Unused sick time is carried over to the following year, subject to the yearly caps (8/6 days). Further, an employer may cap annual sick leave use at 8 days.

Qualified Absences:  Employees may use this leave for more than just illness. Leave may be used for the employee’s or a family member’s illness, injury, health condition or preventive care, or as necessary to deal with domestic abuse, sexual assault or stalking involving the employee or a family member.

Restrictions on Use of Sick Leave: The ordinance affirmatively addresses several ways in which the employer may NOT restrict the use of the sick leave. For example, an employer may not restrict an employee’s use leave during initial employment unless the employer can establish “that the employee’s term of employment is at least one year.” It is unclear how, if at all, that can be established with at-will employees. Moreover, while the ordinance specifically requires employees to timely request leave “before their scheduled work time,” the ordinance also provides that employers may not prevent employees from using earned sick time for an “unforeseeable qualified absence.” Further, employers may not condition the use of sick time on the employee finding a replacement for the time missed.

Interaction with Other Leave/PTO Policies: Employers who make paid time off (PTO) available to employees under conditions that meet the requirements of the ordinance are not required to provide additional sick leave to the employee.

Administrative Issues:

          Handbooks: Employer handbooks must provide notice of these rights.

          Workplace Posters: Posters to be issued by the City of Austin must be displayed.

          Monthly Statement: Employers must provide a statement showing available leave on at least a monthly basis.

          Verification Procedures: An employer can create reasonable procedures to verify employees’ leave requests.

          Transfers/Rehires: An employee transfer within the same employer does not impact the amount of earned sick time or the employee’s right to use it. If an employee returns to work for the same employer in a six-month period, the employee may use previously earned sick time.

What Employers Should Do Now: The City of Austin Equal Employment Opportunity/Fair Housing Office is expected to implement rules to enforce this ordinance. Those rules should provide further clarity on how an employer can comply with this ordinance. It is expected that these rules will include the required handbook notice and poster requirement. In the meantime:

– Determine if you have employees who will be covered by this law.

– Review your current PTO/sick leave policy and determine if it is more generous than the City Ordinance. If not, you will need to modify it before the deadline.

– As the October 1, 2018 deadline approaches, be prepared to update your handbook, post the required notice, and send out the required monthly statements.

– Review current policies to determine if they will need to be modified to comply with the verification process and transfer/rehire rules in the ordinance.

– Be on the lookout for the implementing rules that may change or clarify employer obligations.

The ordinance can be found here.

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