87R3306 RDS-F     By: Reynolds H.B. No. 87       A BILL TO BE ENTITLED   AN ACT   relating to requiring certain employers to provide paid sick leave   to employees; providing administrative and civil penalties.          BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:          SECTION 1.  Subtitle D, Title 2, Labor Code, is amended by   adding Chapter 83 to read as follows:   CHAPTER 83. EARNED PAID SICK LEAVE          Sec. 83.001.  DEFINITIONS. In this chapter:                (1)  "Commission" means the Texas Workforce   Commission.                (2)  "Employee" means a person employed by an employer.                (3)  "Employer" means a person who is engaged in an   industry affecting commerce and who employs one or more employees.                (4)  "Family member" means:                      (A)  the employee's spouse;                      (B)  the employee's natural child, adopted child,   stepchild, foster child, or legal ward;                      (C)  a child to whom the employee stands in loco   parentis;                      (D)  a person to whom the employee stood in loco   parentis when the person was a child;                      (E)  the employee's parent, foster parent,   stepparent, adoptive parent, or legal guardian or conservator;                      (F)  a parent, foster parent, stepparent,   adoptive parent, or legal guardian or conservator of the employee's   spouse;                      (G)  the employee's grandparent or   step-grandparent;                      (H)  the grandparent or step-grandparent of the   employee's spouse;                      (I)  the employee's brother or sister of the whole   or half blood or by adoption;                      (J)  a brother or sister of the whole or half blood   or by adoption of the employee's spouse;                      (K)  the employee's stepbrother or stepsister;                      (L)  a stepbrother or stepsister of the employee's   spouse;                      (M)  the employee's foster brother or sister;                      (N)  a foster brother or sister of the employee's   spouse;                      (O)  the employee's grandchild or   step-grandchild;                      (P)  a grandchild or step-grandchild of the   employee's spouse;                      (Q)  a person for whom the employee is responsible   for providing or arranging care; or                      (R)  a person related to the employee by   consanguinity or affinity who lives in the employee's household.                (5)  "Family violence" has the meaning assigned by   Section 71.004, Family Code.                (6)  "Harassment" means any conduct that constitutes an   offense under Section 42.07, Penal Code.                (7)  "Health care professional" means an individual who   is licensed, certified, or otherwise authorized to administer   health care in this state.                (8)  "Household" has the meaning assigned by Section   71.005, Family Code.                (9)  "Sexual abuse" means any conduct that constitutes   an offense under Section 21.02, 21.11, or 25.02, Penal Code.                (10)  "Sexual assault" means any conduct that   constitutes an offense under Section 22.011 or 22.021, Penal Code.                (11)  "Stalking" means any conduct that constitutes an   offense under Section 42.072, Penal Code.          Sec. 83.002.  APPLICABILITY OF CHAPTER. This chapter does   not apply to:                (1)  an employee who is entitled to unemployment   benefits or allowances under the Railroad Unemployment Insurance   Act (45 U.S.C. Section 351 et seq.); or                (2)  an employer who is an agency of the federal   government.          Sec. 83.003.  PAID SICK LEAVE REQUIRED.  Each employer shall   provide paid sick leave annually to each employee in this state   under the terms of this chapter.          Sec. 83.004.  PAID SICK LEAVE ACCRUAL AND CARRYOVER. (a)     Paid sick leave under this chapter accrues beginning on the date of   hire at a rate of one hour of paid sick leave for each 30 hours   worked by an employee.          (b)  Each employee is entitled to carry over unused paid sick   leave from the current calendar year to the following calendar year   unless the employer elects to pay an employee for unused sick leave   at the end of the calendar year and make paid sick leave available   at the beginning of the next calendar year as provided by Section   83.005(b).          (c)  Sick leave hours carried over from a previous calendar   year must be immediately available to the employee in the following   calendar year.          Sec. 83.005.  ENTITLEMENT TO USE PAID SICK LEAVE;   LIMITATIONS. (a) An employee is entitled to use accrued paid sick   leave under this chapter 60 calendar days after the date of hire,   unless the employer agrees to an earlier date.          (b)  An employer may make immediately available to an   employee at the beginning of a year, quarter, or other period the   entire amount of paid sick leave that the employee is expected to   accrue during the year, quarter, or other period.          (c)  At the employer's discretion, an employer may loan paid   sick leave time to an employee in advance of accrual by the   employee.          (d)  Unless an employee policy or collective bargaining   agreement provides for the payment of accrued fringe benefits on   termination, an employee is not entitled to payment of unused   accrued paid sick leave under this chapter on termination of   employment.          Sec. 83.006.  EMPLOYER COMPLIANCE.  An employer is   considered to be in compliance with this chapter if the employer   offers one or more other types of paid leave that:                (1)  may be used for the purposes described by this   chapter; and                (2)  accrues at a rate equal to or greater than the rate   described by Section 83.004.          Sec. 83.007.  PAY RATE FOR SICK LEAVE. (a)  Each employer   shall pay each employee for paid sick leave time taken at a pay rate   equal to the normal hourly wage for that employee.          (b)  For purposes of Subsection (a) and Section 83.004, an   employee who is exempt from the overtime requirements under Section   13(a)(1), Fair Labor Standards Act of 1938 (29 U.S.C. Section   213(a)(1)), is presumed to work 40 hours each week unless the   employee's regular workweek is less than 40 hours.          Sec. 83.008.  USE OF PAID SICK LEAVE.  (a)  An employee may   use paid sick leave accrued under this chapter for:                (1)  the employee's mental or physical illness, injury,   or health condition;                (2)  the medical diagnosis, care, or treatment of the   employee's mental or physical illness, injury, or health condition;                (3)  preventative medical care for the employee;                (4)  the employee's family member's mental or physical   illness, injury, or health condition;                (5)  the medical diagnosis, care, or treatment of the   employee's family member's mental or physical illness, injury, or   health condition; or                (6)  preventative medical care for the employee's   family member.          (b)  An employee who is or whose family member is a victim of   family violence, sexual assault, sexual abuse, stalking, or   harassment may use paid sick leave accrued under this chapter:                (1)  for medical care or psychological or other   counseling for physical or psychological injury or disability;                (2)  to obtain services from a victim services   organization;                (3)  to relocate due to the family violence, sexual   assault, sexual abuse, stalking, or harassment; or                (4)  to participate in a legal proceeding or   court-ordered requirement relating to the family violence, sexual   assault, sexual abuse, stalking, or harassment.          (c)  An employee may use paid sick leave to attend a meeting   at a child family member's school.          (d)  An employee may use paid sick leave while the employee's   place of business or the school or child care facility of the   employee's child family member is closed due to a public health   emergency.          (e)  An employee may not use paid sick leave in increments of   less than one hour.          (f)  An employer may not require an employee to find another   employee to work during the time the employee intends to use paid   sick leave as a condition of using paid sick leave.          Sec. 83.009.  NOTICE TO EMPLOYER. (a)  If an employee's need   to use paid sick leave under this chapter is foreseeable, an   employer may require advance notice of the intention to use paid   sick leave.          (b)  If an employee's need for paid sick leave is not   foreseeable, an employer may require the employee to give notice of   the employee's intention to use paid sick leave under this chapter   as soon as practicable.          Sec. 83.010.  EMPLOYER RECORDS. An employer shall retain   records that document the amount of paid sick leave accrued and   taken by each employee. The records must be maintained for at least   three years.          Sec. 83.011.  DOCUMENTATION. (a)  For paid sick leave of   three or more consecutive days, an employer may require reasonable   documentation that the leave is being taken for a purpose permitted   under this chapter.          (b)  If paid sick leave is taken for a reason described by   Section 83.008(a), documentation signed by a health care provider   who is treating the employee or the employee's family member   indicating the need for the number of days of the leave is   considered to be reasonable documentation.  An employer may not   require that the documentation explain the nature of the illness,   injury, or health condition.          (c)  If paid sick leave is taken for a reason described by   Section 83.008(b), reasonable documentation includes:                (1)  a copy of a court document;                (2)  an incident report or other record maintained by a   law enforcement agency or official; or                (3)  documentation from a victim's assistance counselor   from a state or local agency or other entity.          (d)  An employer may not require the documentation under   Subsection (c) to include details of the family violence, sexual   assault, sexual abuse, stalking, or harassment, including any   references to specific acts.          (e)  Documentation and information provided to an employer   is confidential.          (f)  If an employer requires documentation under this   section, the employer is responsible for the cost of obtaining   copies of that documentation.          Sec. 83.012.  NOTICE TO EMPLOYEES.  (a)  Each employer   subject to this chapter shall, at the time of hiring, provide notice   in both English and Spanish to each employee:                (1)  of the employee's entitlement to paid sick leave,   the amount of paid sick leave provided to employees, and the terms   under which leave may be used under this chapter;                (2)  that retaliation by the employer against the   employee for requesting or using paid sick leave to which the   employee is entitled is prohibited; and                (3)  that the employee has a right to file a complaint   with the commission or bring a civil action for damages for any   violation of this chapter.          (b)  An employer may comply with this section by displaying a   poster in a conspicuous place, accessible to employees, at the   employer's place of business that contains in both English and   Spanish the information required by this section.          (c)  The notice under this section must also be provided in a   language other than English or Spanish if that language is the first   language spoken by at least 30 percent of the employer's workforce.          (d)  The commission by rule shall prescribe the form and   content of the notice required under this section.          (e)  The commission may adopt rules to establish additional   requirements concerning the means by which employers provide notice   required under this section.          Sec. 83.013.  BREAK IN SERVICE. (a)  Termination of an   employee's employment by an employer, regardless of whether   voluntary or involuntary, is considered a break in service for   purposes of this chapter.          (b)  An employee who is subsequently rehired by the employer   following a break in service:                (1)  begins to accrue paid sick leave under this   chapter; and                (2)  is not entitled to any unused hours of paid sick   leave that had accrued before the employee's break in service,   unless the employee is rehired within 30 days of separation or the   employer agrees to reinstate some or all of the employee's   previously accrued paid sick leave.          Sec. 83.014.  TRANSFER OF EMPLOYEE. (a)  The transfer of an   employee to a separate division, entity, or location of the same   employer is not considered to be a break in service for purposes of   this chapter.          (b)  Following a transfer described by Subsection (a), the   transferred employee is entitled to:                (1)  retain all accrued paid sick leave under this   chapter; and                (2)  immediately access the retained paid sick leave   time without any waiting period, except that the employee remains   subject to any remaining period of the initial waiting period   described by Section 83.005(a), if applicable.          Sec. 83.015.  SUCCESSOR EMPLOYER. If an employer succeeds   or takes the place of an existing employer, employees of the former   employer who are employed by the successor are entitled to:                (1)  retain all accrued paid sick leave under this   chapter; and                (2)  immediately access the retained paid sick leave   time without any waiting period.          Sec. 83.016.  LIMITATIONS OF CHAPTER.  This chapter does   not:                (1)  prevent an employer from providing more paid sick   leave than is required under this chapter;                (2)  prohibit an employer that provides paid leave in   addition to the paid sick leave required under this chapter from   restricting the purposes for which an employee may take that   additional leave; or                (3)  diminish any rights provided to any employee under   a collective bargaining agreement.          Sec. 83.017.  COLLECTIVE BARGAINING AGREEMENT. A collective   bargaining agreement may waive the requirements of this chapter by   clear and unambiguous language within the agreement.          Sec. 83.018.  RETALIATION PROHIBITED.  An employer may not   take retaliatory personnel action or otherwise discriminate   against an employee because the employee:                (1)  requests or uses paid sick leave in accordance   with this chapter; or                (2)  files a complaint with the commission alleging the   employer's violation of this chapter.          Sec. 83.019.  COMPLAINT; HEARING; PENALTY. (a)  Any   employee aggrieved by a violation of this chapter may file a claim   with the commission in the manner prescribed by Subchapter D,   Chapter 61.          (b)  On receipt of a complaint, the commission shall   investigate and dispose of the complaint in the same manner as a   wage claim under Subchapter D, Chapter 61.          (c)  An employer who is found by the commission, by a   preponderance of the evidence, to have violated a provision under   this chapter is liable to the commission for an administrative   penalty.          (d)  The commission may award the employee all appropriate   relief, including payment for used paid sick leave, rehiring or   reinstatement to the employee's previous job, payment of back   wages, and reestablishment of employee benefits for which the   employee otherwise would have been eligible if the employee had not   been subject to retaliatory personnel action or other   discrimination.          (e)  A party may appeal a final decision of the commission by   filing suit in district court.          Sec. 83.020.  CIVIL PENALTY.  An employer who wilfully   violates this chapter is liable for a civil penalty not to exceed   $100 for each violation. The attorney general may bring an action   to collect a civil penalty under this chapter. Civil penalties   assessed under this section shall be deposited in the general   revenue fund.          Sec. 83.021.  CIVIL ACTION BY EMPLOYEE. (a) An employee   aggrieved by a violation of this chapter may bring a civil action to   enforce rights protected by this chapter, including an action for   appropriate injunctive relief, in the district court in the county   in which the alleged violation occurred or in which the alleged   violator's residence or principal place of business is located.          (b)  An action under this section must be brought not later   than the second anniversary of the date of the violation.          (c)  The employer of an employee who prevails in a civil   action under this section is liable to the affected employee for   damages equal to the amount of any wages, salary, employment   benefits, or other compensation denied or lost to the employee by   reason of the violation or, if wages, salary, employment benefits,   or other compensation has not been denied or lost, any actual   monetary losses sustained by the employee as a direct result of the   violation.          (d)  An employer described by Subsection (c) is also liable   for equitable relief as appropriate, including reinstatement and   promotion.          (e)  In addition to any judgment awarded to an employee, the   court may require the employer to pay reasonable attorney's fees,   reasonable expert witness fees, and other costs.          Sec. 83.022.  INFORMATION FROM AND OUTREACH BY COMMISSION.   (a) The commission shall make available to the public on the   commission's Internet website information regarding:                (1)  the requirements of and the rights and remedies   under this chapter; and                (2)  best practices for employers with respect to paid   sick leave.          (b)  The commission shall develop a pamphlet containing the   information provided under Subsection (a) and make the pamphlet   available at no cost for distribution at child care facilities,   health care facilities, family violence shelters, and other   community centers.          (c)  The commission shall make the information under   Subsections (a) and (b) available in both English and Spanish.          (d)  The commission shall conduct additional public outreach   efforts to inform employees and the public about this chapter.          SECTION 2.  (a) The change in law made by this Act applies to   an employee hired on or after January 1, 2022. For an employee   hired before January 1, 2022, paid sick leave under Chapter 83,   Labor Code, as added by this Act, begins to accrue on that date, and   the employee may begin to use the paid sick leave 90 calendar days   after that date, unless the employer agrees to an earlier date.          (b)  Chapter 83, Labor Code, as added by this Act, does not   preempt or override the terms of any collective bargaining   agreement effective before January 1, 2022.          SECTION 3.  Not later than December 1, 2021, the Texas   Workforce Commission shall:                (1)  prescribe the form and content of the notice   required by Section 83.012(a), Labor Code, as added by this Act;                (2)  post on the commission's Internet website the   information required by Section 83.022(a), Labor Code, as added by   this Act; and                (3)  adopt rules necessary to implement Chapter 83,   Labor Code, as added by this Act.          SECTION 4.  This Act takes effect September 1, 2021.