Paid Leave and Coronavirus—Part XVIII: Philadelphia Amends Paid Sick Leave Law in Response to COVID-19

Seyfarth Synopsis: On September 17, 2020, amendments to the Philadelphia Promoting Healthy Families and Workplaces ordinance went into effect. These amendments were passed in response to COVID-19 and provide covered individuals with paid leave for public health emergencies (“PHE”). Covered PHE absences generally align with the absences covered under the federal Families First Coronavirus Response Act (“FFCRA”). PHE paid leave will sunset on December 31, 2020.

On September 10, 2020, the Philadelphia City Council passed a Bill amending the Promoting Healthy Families and Workplaces ordinance (i.e., the city’s original non-COVID-19 paid sick leave ordinance, which has been in effect since 2015). On September 17, Mayor Kenney signed the amendments into law, effective immediately.  The amendments provide covered individuals with paid leave related to a PHE. In particular, covered individuals who work 40 or more hours per week can receive PHE leave equal to the greater of (a) 80 hours or (b) the average hours worked over a 14-day period, up to a maximum of 112 hours. Employees who work fewer hours per week receive a prorated amount of PHE leave.

Notably, employers are required to provide covered individuals with a notice of rights by October 2, 2020.  While not completely clear, it appears likely that the notice of rights must describe certain information and provisions related to PHE leave. See below for more information.

The traditional non-COVID-19 paid sick leave benefit under the Promoting Healthy Families and Workplaces ordinance is not generally affected by the COVID-19 amendments.  The COVID-19 amendments related to PHE leave sunset on December 31, 2020.

Key provisions of the new PHE leave mandate are summarized below.

Covered Individuals

The amendments provide PHE paid leave for covered individuals who are not entitled to leave under the federal FFCRA.

To be covered by the PHE leave amendments, an individual must perform work within the geographic boundaries of the City of Philadelphia for at least 40 hours in a year for one or more hiring entities.  Notably, “covered individuals” include both employees[1] and the following individuals, regardless of whether the individual is considered an employee:

• certain individuals who work in a residence for various domestic service purposes;
• any individual providing services under the participant directed and agency homecare model;
• any individual who works for a food delivery network company, including as a driver;
• any individual who works for a transportation network company, including as a driver; and
• any individual who works as a health care professional as a pool employee.

Moreover, there is a rebuttable presumption that any individual performing work for a hiring entity is an employee.

Covered Employers

The new PHE leave mandate applies to all employers, regardless of business size. Specifically, the amendments note that “a hiring entity” must provide PHE leave to covered individuals and define “hiring entity” to include any employer who employs a covered individual, as well as any individual, partnership, association, corporation, business trust or combination thereof, that pays a wage or wages for the services of a covered individual.

Amount of Leave

Covered individuals who work 40 hours or more per week are eligible to receive PHE leave in an amount equal to the greater of (a) 80 hours or (b) the average hours worked over a 14-day period, up to a maximum of 112 hours.  Covered individuals who work less than 40 hours per week are eligible to receive a prorated amount of PHE paid leave. In particular, such individuals receive PHE paid leave in an amount equal to the amount of compensation the individual receives on average in a 14-day period.

Significantly, the up to 112 hours of PHE is available to a covered individual each time: (a) a public official declares a new PHE based on a different emergency health concern; or (b) a public official declares a second PHE for the same emergency health concern more than one month after the first PHE officially ended.

Use of Leave

The amendments define “public health emergency” to mean a “declared or proclaimed emergency related to a public health threat, risk, disaster or emergency that affects Philadelphia that is made or issued by a federal, state or local official with the authority to make or issue such a declaration or proclamation.” For purposes of the new paid leave mandate, the existence of a PHE is directly tied to the start and end of the relevant declaration or proclamation.

When a PHE exists, a covered individual is entitled to PHE leave if they are unable to work for one or more of the following purposes:

• Being subject to a Federal, State, or local quarantine or isolation order related to the public health emergency.
• Being advised by a health care provider to self-quarantine due to concerns related to the public health emergency.
• Experiencing symptoms related to the public health emergency and seeking a medical diagnosis.
• Caring for an individual who is subject to a quarantine or isolation order as described above or has been advised by a health care provider to self-quarantine as described above.
• Caring for the covered individual’s child whose school or place of care has been closed or whose childcare provider is unavailable due to precautions taken in accordance with the public health emergency response.
• Experiencing any other substantially similar condition specified by the United States Secretary of Health and Human Services in consultation with the United States Secretary of the Treasury and the United States Secretary of Labor.

A covered individual can use all or some of their PHE leave entitlement throughout the duration of the PHE and for up to one month following the end of the PHE. On return from such leave, the covered employer must restore the covered individual to the position they held when the leave began.

Importantly, an employer does not need to provide PHE leave to a covered individual who is reasonably able to work remotely.

Coordination of Leave Benefits

In response to the new PHE leave mandate, a covered employer is not required to change existing policies or provide additional paid leave if its existing policy provides an amount of paid sick leave that (a) is equal to or exceeds the required amount of PHE leave (see above), (b) the employer’s existing leave can be used for the same purposes as PHE leave (see above), and (c) the employer’s existing leave is available under the same conditions that the new mandate applies to PHE leave.  Where an employer is required by another applicable federal or state law to provide paid leave or paid sick time related to a public health emergency, the employer may require that such leave run concurrently with Philadelphia PHE leave unless otherwise prohibited by applicable law.

Individual Notice and Documentation Requirements

Covered individuals must provide notice to their employers of the need for PHE leave as practicable and as soon as feasible.  However, this obligation only exists if the need for PHE leave is foreseeable. The amendments are silent on whether an employer can require notice of PHE leave in unforeseeable circumstances.

In terms of documentation, covered individuals may not be required to provide documentation from a public official in order to use available PHE leave. That said, covered employers may request that the individual submit a self-certified statement asserting that the leave was used for a covered reason.

Payment of Benefits

Individuals must be compensated for PHE paid leave at their regular rate of pay and with the same benefits, including health care benefits, that they normally earn.

Employer Notice and Posting Requirements

Employers are required to provide covered individuals with a notice of their rights by October 2, 2020.

The provisions of the Promoting Healthy Families and Workplaces ordinance applicable to employer notice and posting apply to the new mandate.  As such, employers are required to either (a) provide each covered individual with written notice or (b) display a poster, including the following information:

• that employees are entitled to sick time;
• the amount of sick time;
• the terms of its use as guaranteed under the law;
• that retaliation against employees who request or use sick time is prohibited; and
• that each employee has the right to file a complaint or bring a civil action if sick time is denied by the employer or the employee is retaliated against for requesting or taking sick time.

The information must also be included in any employee handbooks that are distributed to employees.

Where a hiring entity does not maintain a physical workplace or a covered individual works remotely, the required notice of rights must be sent via electronic communication or a conspicuous posting on the employer’s web-based platform.

To date, the city has not released a model notice or poster pertaining to PHE leave.

What Else Should Employers Do Now?

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 law 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] The amendments state that the term “employee” is defined to include “any individual employed by a hiring entity who performs work within the geographic boundaries of the City of Philadelphia for at least 40 hours in a year.”