As of March 28, 2020, there are over 103,000 reported cases of COVID-19 in the United States. In Dallas County, there are 439 confirmed cases—an increase of 72 cases from the prior day—and the number of cases is expected to rise. Given the current environment, employers should be cognizant of Dallas’ Earned Paid Sick Time Ordinance (the “Ordinance”), which takes effect on April 1, 2020. While there has been significant question as whether the Ordinance violates the Texas Constitution, the City of Dallas recently has suggested it intends to enforce the statute after the effective date of April 1, 2020.
The Ordinance originally took effect on August 1, 2019 (for employers with 6 or more employees) and mirrors the paid sick leave ordinances passed by Austin on February 15, 2018 and San Antonio on October 3, 2019. The Austin ordinance is currently enjoined and is before the Texas Supreme Court. See City of Austin, Texas, et al. v. Tex. Ass’n of Bus., et al., No. 19-0025 (Tex. filed Jan. 10, 2019). The San Antonio ordinance is also enjoined, and the Dallas ordinance, while not enjoined, is the subject of a lawsuit pending in the Eastern District of Texas. See ESI/Emp. Sols., LP, et al. v. City of Dallas, No. 4:19-CV-00570-ALM (E.D. Tex. filed July 30, 2019).
Given the pending legal challenges to the various Texas cities’ paid sick leave ordinances, employers may not have acted to comply with the Ordinance, as many expected it to be invalidated by a ruling by the Texas Supreme Court. However, with the April 1, 2020 enforcement date on the horizon, the Texas Supreme Court has yet to issue a ruling on the constitutionality of the cities’ paid sick leave ordinances. What’s more, Dallas County Judge Clay Jenkins—who is leading the City of Dallas’ COVID-19 response—has encouraged employees who become ill as a result of the pandemic to use the paid sick leave available under the Ordinance. See March 23, 2020 Amended Order of County Judge Clay Jenkins, Stay Home Stay Safe.
Below are a summaries of the key provisions of the Ordinance:
- Covered Employees. The Ordinance covers employees who perform a minimum of 80 hours of work annually inside the City of Dallas, including work performed through a temporary or employment agency. Note, based on this definition, an employer who is not located in Dallas County, but has employees who work inside Dallas County would be obligated to pay sick leave under the Ordinance.
- Accrual. Employers must provide paid sick leave at an accrual rate of 1 hour for every 30 hours worked. Accrual is in one hour increments unless an employer’s written policies state accrual should be in fraction of an hour increments. Because the Ordinance took effect on August 1, 2019 (but is not enforced until April 1, 2020), employees will already have accrued paid sick leave accrued under the Ordinance
- Covered Use. Paid sick leave can be used for more than just the employee’s own physical or mental illness. It can also be used for an employee’s physical injury, preventative medical or health care or health condition; to care for an employee’s family member’s physical or mental illness, physical injury, preventative medical or health care, or health condition; or an employee’s or employee’s family member’s need to seek medical attention, relocation, victim services, or to participate in legal or court proceedings related to domestic abuse, sexual assault, or stalking.
- Cap on Hours. Paid sick leave is capped at 64 hours per year for employers with more than 15 employees, and 48 hours per year for employers with fewer than 15 employees.
- Carryover of Hours. Unused paid sick leave carries over to the next year (subject to the accrual cap), unless employers front load the yearly cap amount of paid sick leave at the beginning of the year.
- Monthly Accounting. Employers must provide employees with a monthly accounting of their accrued paid sick leave.
- Notice. Notice of an employee’s rights and remedies under the Ordinance must be included in the employer’s handbook, if the employer has a handbook. Employers must also display a sign that describes the requirements of the Ordinance in a conspicuous spot in the workplace.
- Existing Paid Sick Leave. The Ordinance does not create additional obligations if an employer has an existing paid sick leave program that meets the minimum hour requirements of the Ordinance. Similarly, the Ordinance does not impact paid sick leave that is part of a collective bargaining agreement.
- Anti-Retaliation. Employers cannot retaliate against employees—by transfer, demotion, discharge, suspension, reduced hours, or threats of adverse action—who use paid sick leave under the Ordinance.
- Penalties. Each violation of the Ordinance is subject to a $500 fine by the City of Dallas. However, an employer may avoid fines by engaging in voluntary compliance within 10 business days of receiving a violation notice.
In addition to the Ordinance, employers should also be mindful of the new leave obligations created by the Families First Coronavirus Response Act, which is discussed here, and the potential for employees to qualify for paid sick leave under both laws.
***Update as of March 31, 2020. The Dallas Earned Sick Time Ordinance (the “Ordinance”), which was scheduled to be enforced on April 1, 2020, has been enjoined. A temporary injunction, prohibiting the enforcement of the Ordinance, was granted in ESI/Employee Solutions LP et al. v. City of Dallas et al., No. 4:19-cv-00570 (E.D. Tex. Mar. 30, 2020). The U.S. District Court Judge presiding over the case held that there was a substantial likelihood of success on the plaintiffs’ claim that the Ordinance was preempted by the Texas Minimum Wage Act and, therefore, is unenforceable under the Texas Constitution.