Paid Leave and Coronavirus—Part XIX: Pittsburgh Passes Temporary Emergency COVID-19 Paid Sick Leave Law

Seyfarth Synopsis: Earlier this month, Pittsburgh enacted “An Ordinance providing for special conditions for the operation and use of Paid Sick leave under the Paid Sick Days Act during and due to the crisis presented by COVID-19” (the “Ordinance”) by adding a new Chapter to the Pittsburgh Code of Ordinances: Temporary Emergency COVID-19 Paid Sick Leave (“COVID-19 Sick Time”).  The Ordinance provides covered individuals with paid leave for certain COVID-19 related absences.  While the covered absences under the Ordinance are similar to absences covered under the federal Families First Coronavirus Response Act (“FFCRA”), Pittsburgh’s COVID-19 Sick Time will remain available for use after the FFCRA’s current December 31, 2020 sunset date.[1]

On December 8, 2020, the Pittsburgh City Council voted unanimously in favor of the COVID-19 Paid Sick Leave Ordinance.  The Ordinance was formally enacted on December 9, 2020, and went into effect immediately.  The Ordinance mandates that covered employers provide additional paid leave beyond what they are already providing, including any leave required under Pittsburgh’s existing Paid Sick Days Act (“PSDA”), i.e., the city’s general non-COVID-19 paid sick leave mandate that went into effect in March 2020 after a lengthy litigation resulted in the Pennsylvania Supreme Court ruling that the PSDA did not violate the state Home Rule Charter and Optional Plans Law.[2]  Paid time off under the Pittsburgh COVID-19 Paid Sick Leave Ordinance will remain available for covered employees to use until one week following the official termination or suspension of the COVID-19 emergency disaster declaration of the Commonwealth of Pennsylvania or the COVID-19 emergency disaster Declaration of the City of Pittsburgh, whichever is sooner.

Key provisions of Pittsburgh’s new COVID-19 Sick Time mandate are summarized below.

Covered Individuals

The Ordinance uses the same definition of “employee” and “employer” as the PSDA.[3]  The Ordinance provides COVID-19 Sick Time to employees who:

• Are working for a covered employer within the City of Pittsburgh after the effective date of the Ordinance;
• Normally work for a covered employer within the City of Pittsburgh but are currently teleworking from any other location as a result of COVID-19; or
• Work for a covered employer from multiple locations or from mobile locations, provided that 51% or more of such employee’s time is spent within the City of Pittsburgh.

Covered Employers

The Ordinance covers employers of 50 or more employees.  “Employer” includes a person, partnership, limited partnership, association, or unincorporated or otherwise, corporation, institution, trust, government body, or unit or agency, or any other entity situated or doing business in the City, but does not include the United States Government or the State of Pennsylvania.

Amount of Leave

Covered employees who work 40 hours or more per week are entitled to a minimum of 80 hours of COVID-19 Sick Time.  Covered employees who work fewer than 40 hours per week are entitled to a prorated amount of COVID-19 Sick Time equal to the amount of time the employee is otherwise scheduled to work or works on average in a 14-day period, whichever is greater.  For covered employees whose schedules vary from week to week, the amount of COVID-19 Sick Time available is based on the number of hours the employee was scheduled to work over the past 90 days (including hours for which the employee took leave of any type).  Employees who are exempt from the federal Fair Labor Standards Act are assumed to work 40 hours per week, unless their normal work week is less than 40 hours, in which case the amount of COVID-19 Sick Time available is based on the normal work week.

The city’s COVID-19 Paid Sick Leave Ordinance states that employers must make available the maximum amount of non-COVID sick time afforded to employees under the PSDA (i.e., 24 or 40 hours per year depending on the employer’s size) immediately upon hiring if the employee's otherwise permissible sick time request arises directly from COVID-19. Employers may continue to require receipt of non-COVID paid sick time on an accrual basis for all other covered absences under the PSDA.

Use of Leave

Pittsburgh COVID-19 Sick Time is available when a covered employee is unable to work or telework for the following reasons:

• Determination by a public official or public health authority, health care provider, or the employer, that the employee’s presence on the job or in the community would jeopardize the health of others because of the employee’s exposure to COVID-19 or because the employee is exhibiting symptoms, regardless of whether the employee has been diagnosed with COVID-19;
• Care of a family member due to a determination by a public official or public health authority, health care provider, or the family member’s employer, that the family member’s presence on the job or in the community would jeopardize the health of others because of the family member’s exposure to COVID-19 or because the family member is exhibiting symptoms, regardless of whether the family member has been diagnosed with COVID-19;[4]
• An employee’s need to (a) self-isolate or care for oneself because of a COVID-19 diagnosis; (b) self-isolate or care for oneself because of COVID-19 symptoms; or (c) seek or obtain medical diagnosis, care, or treatment if experiencing COVID-19 symptoms; or
• Care of a family member who: (a) is self-isolating because of a COVID-19 diagnosis; (b) is self-isolating because of COVID-19 symptoms; or (c) needs medical diagnosis, care, or treatment if experiencing COVID-19 symptoms.

Unlike the PSDA, which allows employers to grant paid sick leave on an accrual basis, there is no accrual of COVID-19 Sick Time.  Each covered employee’s entire allotment of COVID-19 Sick Time is available for use immediately beginning on the 90th calendar day of employment. 

As noted above, COVID-19 Sick Time will remain available for use by covered employees until one week following the official termination or suspension of the COVID-19 emergency Declaration or the Commonwealth of Pennsylvania or the COVID-19 emergency disaster Declaration in the City of Pittsburgh, whichever is sooner.

Coordination of Leave Benefits

Interplay with PSDA Sick Time: Pittsburgh COVID-19 Sick Time is in addition to any paid leave or sick time provided by employers pursuant to the PSDA, and employees may use COVID-19 Sick Time before any sick time available under the PSDA. 

Interplay with Other Employer-Provided Paid Leave: Where a covered employer provided paid leave to covered employees prior to the Ordinance’s December 9, 2020 effective date, Pittsburgh COVID-19 Sick Time is in addition to such paid leave. Further, the Ordinance prohibits employers from changing their preexisting paid leave policies on or after December 9, 2020 to avoid being subject to the Ordinance. 

Employers who, after March 13, 2020, adopted their own COVID-19 paid sick leave policies that provide employees with additional paid sick leave specifically for use during the COVID-19 pandemic may substitute leave under such a policy for COVID-19 Sick Time under the Ordinance to the extent that they coincide.  However, where requirements of the Ordinance exceed the requirements of such employer-provided COVID-19 paid sick leave policies, the employer must provide additional Pittsburgh COVID-19 Sick Time.

An employer may not require an employee to use other paid leave prior to using COVID-19 Sick Time unless otherwise required by state or federal law.  In the event federal or state law requires employers to provide paid leave or paid sick time related to COVID-19, employers may substitute leave under the federal or state law for their obligations under the Ordinance to the extent they coincide and the relevant federal or state law permits such concurrent use of paid leave.

Additional Considerations

Employee Notice to the Employer: Covered employees must provide notice to their employer of the need for Pittsburgh COVID-19 Sick Time as soon as practicable. 

Cannot Mandate Employee Find Replacements: Employers may not require employees to search for or find replacement workers to cover hours missed using COVID-19 Sick Time. 

Increments of Use: Employees may use COVID-19 Sick Time in the smallest increment that the employer’s payroll system uses to account of absences of other time.

No Payout: Employers are not required to provide financial or other reimbursement for unused COVID-19 Sick Time to an employee upon termination, resignation, retirement, or other separation from employment.

What 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 paidleave@seyfarth.com.

 

[1] At the time of this publication, the latest federal economic relief package that was approved by Congress earlier this week had not yet been signed into law. However, based on the terms of that legislation and assuming it is signed into law as is, the FFCRA paid sick leave and expanded FMLA leave payroll tax credits would be extended through March 31, 2021, but the FFCRA paid leave mandates would not extended.

[2] For more information on the Pittsburgh PSDA, see our prior Legal Updates here and here.

[3] See the PSDA for more information.

[4] It currently is unclear under the Pittsburgh COVID-19 Paid Sick Leave Ordinance how the term "family member" is defined for purposes of COVID-19 Sick Time covered absences. While the Ordinance states that “all capitalized terms contained herein shall be defined according to [the PSDA]” and the PSDA contains a definition of “family member,” the phrase is not capitalized in the city’s COVID-19 Paid Sick Leave Ordinance.