On March 29, 2021, Philadelphia, Pennsylvania enacted Bill # 210122-A, an ordinance immediately requiring covered employers to provide 2021 Public Health Emergency Leave (“2021 PHEL”). Philadelphia’s similar 2020 PHEL ordinance expired on December 31, 2021, but 2021 PHEL is not retroactive. Compared to the 2020 PHEL ordinance, the new law significantly changes the amount of paid leave available to some individuals, expands the covered uses for leave, and excludes certain small employers. The new ordinance will remain in effect until expiration of the statewide public health emergency declaration related to the COVID-19 pandemic.
Covered Employers and Employees: The ordinance applies to employers with 50 or more workers, but does not explain how to count employees or whether to limit the calculation to employees in Philadelphia. The 50-employee threshold provides some relief to small businesses hardest hit by the economic impact of COVID-19 closures.
To be eligible for 2021 PHEL, an employee must have worked for a covered employer for 90 or more days and: 1) work in Philadelphia; 2) normally work in Philadelphia but currently telecommute from outside the city; or 3) work from multiple or mobile locations but spend 51% of the time working in Philadelphia. For employers with a unionized workforce, a bona fide collective bargaining agreement can waive the ordinance’s requirements if it: (a) includes an explicit waiver in clear and unmistakable terms; (b) provides a comparable paid leave benefit; and (c) is in effect contractually.
Amount of Leave: Employers must provide – rather than have employees accrue – the following amounts of 2021 PHEL:
- Employees who work 40 or more hours per week receive at least 80 hours, unless their employer provides a greater amount.
- Employees who work fewer than 40 hours per week receive an amount equal to the amount of time they are scheduled to work or actually work on average in a 14-day period, whichever is greater, unless the employer provides a greater amount.
- Employees whose weekly schedule varies receive the average number of daily hours that the employee was scheduled over the past 90 days of work, including hours for which the employee took leave of any type, multiplied by 14.
The ordinance assumes executive, administrative, professional, and outside sales employees who are exempt under the federal Fair Labor Standards Act work 40 hours per week unless their normal work week is less than 40 hours, in which case employers calculate the amount of 2021 PHEL using the employee’s normal work week.
Using Existing Paid Leave Benefits
In general, 2021 PHEL benefits are in addition to all other paid leave benefits an employer provides, and an employer cannot reduce the amount of 2021 PHEL it must provide by the amount of paid leave an employee previously received, including any 2020 PHEL or other 2020 COVID-related leave. Under limited circumstances, however, employers can apply pre-existing benefits to satisfy 2021 PHEL requirements in whole or part:
- Teleworkers: When employees complete the majority of their work through telework, employers need not change existing policies or provide additional paid leave if existing policies provide teleworking employees with at least 80 hours of paid leave in 2021, and employees can use such paid leave for the same purposes and under all of the same conditions as set forth under the ordinance.
- Generous Paid Leave Policies: An employer need not change an existing leave policy or provide additional paid leave to employees if its policy provides at least 160 hours of paid time off in 2021 that is not specifically designated as sick leave, but employees can use for the same purposes and under all of the same conditions as the ordinance requires. This 160-hour threshold is an increase from the original draft’s 80-hour threshold because of the Council’s concern that employees would need to use their entire annual paid time off allotment for COVID-related leave.
- COVID Paid Leave Policies: If, on or after March 6, 2020, an employer adopted a policy that provides employees additional paid time off specifically for use during the COVID-19 pandemic in 2021, it may substitute leave under that policy for 2021 PHEL to the extent they coincide. Employers must provide additional 2021 PHEL only to the extent that the ordinance’s requirements exceed their COVID-19 paid leave policy’s requirements.
Covered Uses: The 2021 ordinance expands the reasons for which employees can use PHEL. Leave is available for immediate use at any time during the COVID-19 public health emergency (and for one week following the conclusion or suspension of such emergency) when employees are unable to work due to one or more of the following reasons:
- A public official, public health authority, health care provider, or an employer determines that the employee’s presence on the job or in the community would jeopardize others’ health because of the employee’s exposure to COVID-19 or the employee is exhibiting symptoms that might jeopardize others’ health, regardless of whether the employee has a positive COVID-19 diagnosis;
- To care for a family member due to a public official, health authority, health care provider, or employer’s determination that the family member’s presence on the job or in the community would jeopardize others’ health because of the family member’s exposure to COVID-19 or the employer’s determination that the family member is a danger to others’ health because the family member is exhibiting symptoms that might jeopardize others’ health, regardless of whether the family member has a positive COVID-19 diagnosis;
- An employee needs to: (i) self-isolate due to a positive COVID-19 diagnosis; (ii) self-isolate due to experiencing symptoms of COVID-19; or (iii) seek or obtain medical diagnosis, care, or treatment if experiencing symptoms of an illness related to COVID-19;
- To care for a family member who: (i) is self-isolating due to a positive COVID-19 diagnosis; (ii) is self-isolating due to experiencing symptoms of COVID-19; or (iii) needs medical diagnosis, care, or treatment if experiencing symptoms of an illness related to COVID-19;
- To care for a 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;
- To obtain a COVID-19 vaccine; or
- To recover from any injury, disability, illness or condition related to a COVID-19 vaccination.
Employees can use PHEL in the smaller of hourly increments or the smallest increment the employer’s payroll system uses to account for absences or use of other time. An employer cannot require an employee to use other paid sick leave available to the employee, e.g., pre-COVID statutory Philadelphia paid sick leave, before the employee is eligible to use 2021 PHEL, unless state or federal law requires otherwise.
Requesting, Verifying & Documenting Leave: Employees must provide notice to their employers as practicable and as soon as feasible, but only when the need for leave is foreseeable. The law does not specify notice, if any, employees must provide for unforeseeable absences. An employer can request that an employee submit a self-certified statement asserting that leave was taken for a covered reason under the ordinance.
Rate of Pay: Employers must pay 2021 PHEL at the employee’s regular rate of pay, and with the same benefits (including health care benefits) the employee normally earns, which cannot be less than the state minimum wage. To calculate the “regular rate of pay,” employers use the same formula they would for overtime purposes under state law.
Employer Notice & Recordkeeping Requirements: Within 15 days after the ordinance’s effective date (that is, by April 13, 2021), employers must provide employees with a notice of rights that explains:
- Employees are entitled to leave, the amount of leave, and the terms of its use guaranteed under the law;
- Retaliation against employees who request or use leave is prohibited and that each employee has the right to file a complaint or bring a civil action if leave required by the law is denied by the employer or the employer is retaliated against for requesting or taking leave.
Philadelphia’s Department of Labor has published a model notice that satisfies these requirements. Employers can satisfy their notice obligations by conspicuously displaying the required notice in the workplace. If an employer does not maintain a physical workplace, or an employee teleworks or performs work through a web-based platform, the required notice must be provided to employees via electronic communication or a conspicuous posting in the web-based platform. The notice must be in English and in any language that is the first language spoken by at least 5% of the workforce. Additionally, similar to their obligation under pre-COVID Philadelphia paid sick leave ordinance, employers must include the requisite notice of rights in any employee handbook.
For two years, employers must keep records documenting: hours worked; leave taken; and payment made for leave taken.
Prohibitions: The ordinance includes numerous prohibitions, expressly or by incorporating standards in the pre-COVID Philadelphia paid sick leave ordinance. For example, as a condition of providing PHEL, employers cannot require employees to search for or find a replacement to cover the hours during which they are using leave. Employers cannot reduce the amount of any paid leave an employee could use or accrue under the employer’s existing policies as of March 1, 2021. Employers cannot take retaliatory personnel action or discriminate against an employee who exercises rights protected by the ordinance.
Next Steps: As the ordinance took effect immediately on March 29, 2021, employers should quickly review the law’s requirements to determine whether and how they can comply via existing policies or, alternatively, how to develop a compliant, standalone 2021 PHEL benefit. Employers should consider discussing their proposed policies or revisions with knowledgeable employment counsel, particularly if they intend to develop policies and practices that comply with similar mandatory in-state (Pittsburgh) or out-of-state requirements, or, for employers with 499 or fewer employees, whether and how they can claim federal tax credits made available via the American Rescue Plan Act of 2021.
