On November 16, 2018, the Texas Third Court of Appeals delivered a significant blow to Austin's Earned Sick Time Ordinance, the first law in the Lone Star State that would have required private sector employers to provide employees with paid time off. While the measure is not completely dead, its prospects of survival have dimmed.

Nine months ago, on February 16, 2018, the Austin, Texas City Council approved the adoption of Austin's ordinance requiring private employers to provide paid sick leave to employees. San Antonio followed suit only a few months later. The Austin ordinance was set to take effect on October 1, 2018, and for a time, had defeated preliminary legal challenges lodged by a coalition of businesses and the State of Texas.  

The appellate court, however, held that the Austin Earned Sick Time Ordinance violated the Texas Constitution because it was preempted by the Texas Minimum Wage Act, reversed the district court’s denial of the temporary injunction, and instructed the district court to temporarily block the ordinance from taking effect until the state’s lawsuit was fully adjudicated.

The appellate court’s ruling has effectively blocked the ordinance from taking effect during litigation and will give the Texas Legislature an opportunity to enact legislation to prevent it from ever taking effect. In fact, the agenda for the 86th Regular Session for the Texas Legislature already is taking shape. On November 12, 2018, State Representative Matt Krause (R-Fort Worth) filed a bill seeking to prohibit any municipality from adopting or enforcing an ordinance, rule, or regulation that requires employers to provide paid sick leave to employees. It remains unclear what form the final piece of legislation will take or how effective any opposition to the legislation will be.

So how does this affect employers in Austin and San Antonio?

It is becoming more and more unlikely that the Austin ordinance will take effect in the near future. That said, employers that may be covered under the Austin ordinance should continue to monitor the issue and consult with employment law counsel to determine whether to develop any new paid sick and safe time policies.

The nearly identical San Antonio ordinance, set to go into effect on August 1, 2019, is not the subject of any lawsuit, but is likely to share the same fate as the Austin ordinance. Employers in San Antonio may favor a “wait and see” approach instead of expending time and resources developing policies and procedures for a law that may never come into force. If such an approach is adopted, however, it would be prudent to set recurring check-in dates to ensure that, should the law go forward, sufficient time exists to consult with counsel, weigh policy options, and roll out an appropriate leave program.