Paid Sick Leave

Posted on December 18, 2019 in Consulting

During the holiday season, we think of those in need. In the workplace, the needy are the lowest-tier of the workforce who have no access to paid sick leave.

Paid sick leave is a hot topic in Texas and across the country. There is merit to both sides of the debate, and I certainly understand and respect the business interest in fighting government regulation of wages and benefits. However, I believe Texas ought to adopt some moderate and limited paid sick leave.

A number of states have implemented paid sick leave laws. There appears to be a growing push across the country to mandate this employee benefit. A number of U.S. cities are following this trend. Austin, Dallas, and San Antonio passed similar paid sick leave ordinances in the last few years. The readers of this newsletter already know that enforcement of each of the Texas municipality ordinances has been enjoined or stalled because of pending lawsuits.

The first big decision blocking the Texas cities’ paid sick leave ordinances came out of the Austin Court of Appeals in late 2018. The Court held that a municipality cannot adopt an ordinance that affects wages because it conflicts with the Texas Minimum Wage Act (the “TMWA”). The decision relied upon the Texas Constitution, which bars municipalities from adopting regulations if the State has adopted law that preempts city action on a particular matter. The City of Austin has petitioned for review before the Texas Supreme Court.

In the meantime, during the 2019 Texas legislative session, the senate passed a bill designed explicitly to preclude city mandates for paid sick leave. Presumably, the bill sought to avoid the Texas Supreme Court ruling in favor of the City of Austin and permitting enforcement of the sick leave ordinance. The bill died in the legislature.

As with most political controversies, there should be room for compromise. I believe that all employers should consider paying full-time employees at least 3 days of sick leave during a year. Sick leave should be permitted after an employee has worked for some minimum period of time (e.g. 90 days). Sick leave should not be carried over to the next calendar year and is not paid upon separation of employment. Finally, to balance the conservative interest, perhaps mandatory sick leave paid to non-exempt employees at a lesser rate (i.e., some percentage of the worker’s regular rate of pay). This way, employees are less likely to pretend an illness and more likely incentivized to use sick leave only when necessary.

I recognize this is a somewhat controversial subject. However, I am confident beyond a doubt that no one reading this newsletter worries about being denied pay for missing a few days of work. The needy in the workforce deserve further thought and consideration into mandated paid sick leave.

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