If Pain, Yes Gain—Part 98: Allegheny County, PA Enacts Paid Sick Leave Ordinance

Seyfarth Synopsis: Last month, Allegheny County became the third Pennsylvania locality to pass a paid sick leave ordinance. With the exception of the ordinance’s notice requirements, the ordinance is scheduled to take effect on the 90th calendar day following the posting of notice information for employers on the Allegheny County website.

Allegheny County’s general, non-COVID-19 paid sick leave ordinance was unanimously passed by the County Council on September 14, 2021 and signed into law by County Chief Executive Rich Fitzgerald the following day, on September 15, 2021. Although this is the first paid sick leave ordinance passed on the county level in Pennsylvania, the Allegheny County ordinance is the third local sick leave mandate in the state, following in the footsteps of Philadelphia and Pittsburgh.[1] Nationwide, Allegheny County joins 17 states, Washington D.C., and nearly two dozen municipalities that have employer provided non-COVID-19 specific paid leave mandates either in effect or scheduled to go into effect at this time.[2]

It is not currently clear when employer obligations to provide paid sick leave will take effect under the Allegheny County ordinance. The ordinance provides that employers’ notice obligations (see below) become effective immediately upon approval, while the remaining provisions of the ordinance take effect on the 90th calendar day following the posting of the notice information for employers. With respect to employers’ notice obligations, the ordinance provides that the agency charged with enforcement of the ordinance will promulgate all material necessary for an employer to comply with the ordinance’s notice requirements and make these materials available on the County’s website.

As the posting of these materials will start the 90-day clock for the effective date by which employers must provide compliant paid sick leave, and possibly trigger employers’ notice obligations immediately, we will continue to monitor the Allegheny County website for more information and update employers accordingly. As of the publication of this Legal Update, no such materials have been made available by the County.

Upon taking effect, the Allegheny County paid sick leave ordinance will require covered employers to allow eligible employees to earn up to 40 hours of paid sick leave per year. Here are some of the highlights from the Allegheny County paid sick leave ordinance.

• Covered Employers: The ordinance broadly defines “employer” as any person, partnership, limited partnership, association, corporation, institution, trust, government body or unit or agency, or any other entity situated doing business within Allegheny County employing one or more persons for a salary, wage, commission, or other compensation. The definition of “employer” does not include the United States government, the state of Pennsylvania, or any departments, agencies, or other bodies of the state.
  • ­Coverage Threshold and Determining Employer Size: Importantly, the obligation to provide paid sick leave applies to employees of employers with 26 or more employees. It is unclear at this time whether employer size is determined by counting employees in Allegheny County only, in all of Pennsylvania, or nationwide.
• Eligible Employees: Employee is broadly defined as any individual employed by an employer. Independent contractors, state and federal employees, and seasonal employees[3] are not included in the definition of “employee.”
• Start of Accrual: Employees begin accruing paid sick leave on the ordinance’s effective date, or at the start of their employment, whichever is later.
• Accrual Rate and Cap: Employees must be permitted to accrue at least one (1) hour of paid sick leave for every 35 hours worked[4] within the geographical boundaries of Allegheny County, up to a maximum of 40 hours of paid sick leave in a calendar year,[5] unless the employer provides paid sick leave at a faster accrual rate and/or with a more generous accrual cap.
  • Frontloading: As an alternative to providing paid sick leave via accrual, the ordinance permits employers to provide 40 hours of paid sick leave at the beginning of each calendar year.
• Carryover: Generally, accrued paid sick leave shall carryover to the following year. However, it appears that carryover of paid sick leave can be capped at 40 hours, as the ordinance provides that employees “may carry over accrued paid sick time so long as the total paid sick time available does not exceed 40 hours.” Importantly, carryover is not required where an employer frontloads 40 hours of paid sick leave at the beginning of each calendar year.
• Maximum Balance: The ordinance provides “[a]t no point shall an employee . . . be permitted to have access to more than 40 hours of paid sick time, unless the employer designates a higher amount.” It is unclear whether this 40-hour limit is a “point-in-time” accrual cap or a permissible annual usage limit employers can set on employees’ use of paid sick leave each year. Employers should look out for further guidance from Allegheny County on this point.
• Usage Waiting Period: Employees can begin using paid sick leave on the 90th calendar day following the commencement of their employment.
• Reasons for Use: Employees can use paid sick leave for the following covered reasons:
  • An employee's mental or physical illness, injury or health condition; an employee's need for medical diagnosis, care, or treatment of a mental or physical illness, injury or health condition; an employee's need for preventive medical care;
  • Care of a family member with a mental or physical illness, injury or health condition; care of a family member who needs medical diagnosis, care, or treatment of a mental or physical illness, injury or health condition; care of a family member who needs preventive medical care;
  • Closure of the employee’s place of business by order of a public official due to a public health emergency or an employee’s need to care for a child whose school or place of care has been closed by order of a public official due to a public health emergency; and
  • Care for a family member when it has been determined by the health authorities having jurisdiction or by a health care provider that the family member’s presence in the community would jeopardize the health of others because of the family member’s exposure to a communicable disease, whether or not the family member has actually contracted the communicable disease.
• Covered Family Members: Under the ordinance, “family member” includes the following individuals: (a) child (including biological, adopted, foster, or stepchild, legal ward, a child of a domestic partner, or a child to whom the employee stands in loco parentis); (b) parent (including biological, foster, adoptive, or step-parent, legal guardian of an employee or an employee’s spouse or domestic partner, or a person who stood in loco parentis when the employee was a minor child); (c) a person to whom the employee is legally married under the laws of any state; (d) grandparent or spouse or domestic partner of a grandparent; (e) grandchild; (f) sibling (including biological, foster, or adopted sibling); (g) domestic partner; and (h) any individual for whom the employee has received permission from the employer to care for at the time of the employee’s request to use paid sick leave.
• Increments of Use: Employees can use paid sick leave in the smaller of hourly increments or the smallest increment that the employer’s payroll system uses to account for absences or use of other time.
• Rate of Pay: “Paid Sick Time” is defined as time that is compensated at the same base rate of pay, and with the same benefits, including health care benefits, as an employee would have earned at the time of their use of the paid sick time. An employee’s hourly wage when using paid sick leave cannot be less than the Pennsylvania minimum wage.
• Notice to Employer: Generally, employees must provide notice when using paid sick leave and include the anticipated duration of their absence when possible. Employers may maintain their own notification policy that dictates how soon before an employee’s shift the employee must make their oral request to use paid sick leave, provided that it is reasonable, does not obstruct an employee’s use of paid sick leave, and permits notice as soon as possible for unplanned sick leave absences. Employees of employers who do not maintain such a policy must notify the employer of their request to use paid sick leave at least one (1) hour prior to the start of their shift.
  • Foreseeable Absences: Employers can require reasonable advance notice not to exceed seven (7) days prior to the date paid sick leave use begins.
  • Unforeseeable Absences: The employee must make a good faith effort to provide notice as soon as possible.
• Documentation: After an absence of three (3) or more full consecutive days, an employer may require an employee to provide reasonable documentation that paid sick leave was used for a covered reason. “Reasonable documentation” is defined as documentation signed by a health care professional indicating that paid sick leave is necessary.
• Payout Upon Separation and Reinstatement Upon Re-hire: Employers are not required to payout employees’ accrued, unused sick leave upon an employee's separation from employment. When an employee separates from employment and is re-hired within six months by the same employer, previously accrued, unused paid sick leave must be reinstated.
• Compliance Using Existing Policy: Employers with an existing paid leave policy, such as a paid time off policy, are not required to provide additional paid sick leave, provided that: (a) the policy provides an amount of paid sick leave sufficient to meet the accrual requirements of the ordinance; and (b) the paid leave may be used for the same purposes and under the same conditions as paid sick leave under the ordinance.
• Collective Bargaining Agreements: The ordinance provides that employers with a CBA are not required to provide additional paid sick leave provided that: (a) the CBA makes available a sufficient amount of paid sick leave to meet the accrual requirements of the ordinance; and (b) the paid sick leave may be used for the same purposes and under the same conditions as paid sick leave under the ordinance.
• Notice of Rights: Employers must provide employees with written notice of certain paid sick leave rights, such as that they are entitled to use paid sick leave, the amount of paid sick leave, and the terms of its use guaranteed under the ordinance. Notably, the ordinance lacks details on the mechanism by which employers must provide this notice (i.e., individual notice; posting; etc.) and any corresponding language requirements. As noted above, the agency is charged with promulgating the materials necessary for employers to comply with the ordinance’s notice requirements and making these materials available through the County website.
• Recordkeeping: Employers are required to retain records documenting hours worked and paid sick leave taken by employees for a period of two (2) years.
• Interplay With Local Paid Sick Leave Ordinances: Importantly, the Allegheny County paid sick leave ordinance does not apply to any municipality within the County that has an enacted a paid sick leave ordinance, such as Pittsburgh, so long as the municipality’s ordinance is not less stringent than the requirements of the Allegheny County paid sick leave ordinance.

Employer Takeaways

Despite uncertainty surrounding the Allegheny County paid sick leave ordinance’s effective date, employers should take steps now to prepare for compliance with the ordinance’s requirements. We will continue to monitor Allegheny County paid sick leave developments and update employers as appropriate.

In the meantime, here are some steps to consider:

• Review existing sick leave or PTO policies and practices and either implement new policies and practices or revise existing policies and practices to ensure compliance with the ordinance, while doing the same for any related attendance, conduct, anti-retaliation, and discipline policies and practices.
• Train supervisory and managerial employees, as well as HR, on the new requirements.
• Monitor the Allegheny County website the release of notice materials, as well as administrative guidance and/or regulations on employers’ paid sick leave compliance obligations.

With the paid leave landscape continuing to expand and grow in complexity, companies should reach out to their Seyfarth contact for solutions and recommendations on addressing compliance with this ordinance and paid leave requirements more generally. To stay up-to-date on Paid Sick Leave developments, click here to sign up for Seyfarth’s Paid Sick Leave mailing list. Companies interested in Seyfarth’s paid sick leave laws survey should reach out to sickleave@seyfarth.com.

 

[1] Philadelphia and Pittsburgh have also passed COVID-19 specific paid sick leave ordinances twice during the COVID-19 pandemic. While both Philadelphia COVID-19 PSL ordinances and the original Pittsburgh COVID-19 PSL ordinance are now expired, the latter Pittsburgh COVID-19 paid sick leave ordinance remains in effect until July 29, 2022.

[2] In addition to Allegheny County, the jurisdictions that have non-COVID-19 specific employer provided paid leave mandates either in effect or scheduled to go into effect are: (1) Arizona; (2) California; (3) Colorado; (4) Connecticut; (5) Maine (PTO law); (6) Maryland; (7) Massachusetts; (8) Michigan; (9) Nevada (PTO law); (10) New Jersey; (11) New Mexico; (12) New York; (13) Oregon; (14) Rhode Island; (15) Vermont; (16) Virginia (Certain home health care workers only); (17) Washington; (18) Washington D.C.; (19) San Francisco, CA; (20) Seattle, WA (1 general sick leave law; 1 general sick leave law – temporary, emergency basis for gig workers);  (21) Long Beach, CA (hotel-specific); (22) SeaTac, WA (hospitality and transportation industry-specific law); (23) New York City, NY; (24) City of Los Angeles, CA (1 general sick leave law; 1 hotel-specific general sick leave law); (25) Oakland, CA; (26) Philadelphia, PA; (27) Tacoma, WA; (28) Emeryville, CA; (29) Montgomery County, MD; (30) Pittsburgh, PA; (31) Santa Monica, CA; (32) Minneapolis, MN; (33) San Diego, CA; (34) Chicago, IL; (35) Berkeley, CA; (36) Saint Paul, MN; (37) Cook County, IL; (38) Duluth, MN; (39) Westchester County, NY (safe leave only); and (40) Bernalillo County, NM (PTO law).

[3] “Seasonal employee” is defined as “[a] person who has been hired for a temporary period of not more than sixteen weeks during a calendar year and has been notified in writing at the time of hire that the individual's employment is limited to the beginning and ending dates of the employer's seasonal period, as determined by the employer.”

[4] Employees who are exempt under the Federal Fair Labor Standards Act are assumed to work 40 hours each workweek for purposes of paid sick leave accrual, unless their normal work week is less than 40 hours, in which case sick leave accrues based upon their normal workweek.

[5] “Calendar year” is defined as a regular and consecutive 12-month period as determined by the employer and communicated to all employees.