On June 26, 2020, Philadelphia Mayor Jim Kenney signed into law a new ordinance amending the Philadelphia Code to enact “employee protections in connection with COVID-19” health orders. The law is intended to provide workplace protections for employees against retaliatory actions for the disclosure of information related to employer non-compliance with health orders, and for refusal to work under unsafe conditions caused by non-compliance. It also includes protections related to perceived immigration status. The new law will almost certainly lead to substantial litigation against Philadelphia employers.
The law requires employers to comply with all applicable requirements of COVID-19 public health orders issued by Philadelphia’s Department of Public Health or the Pennsylvania Department of Health. The definitions of employee and employer are extremely broad. Essentially, any individual who performs work for an employer is an employee and an employer includes any person, including corporate officers or executives who directly or indirectly employ or exercise control over the wages, hours, or working conditions of any employee. An adverse employment action would include reductions in pay, adverse changes in working hours, termination, refusal to employ, harassment, or threats pertaining to an individual’s perceived immigration status. It is unclear how immigration status is related to health orders.
An employer is presumed to have engaged in retaliation if an adverse employment action is taken against the person within 90 days of the exercise of rights protected in the law. Protected rights include refusing to work in unsafe conditions “if the employee reasonably believes that the employer is operating in violation of a COVID-19 public health order” and the employee has notified the employer of the unsafe condition. The law establishes a private right of action that an employee may pursue after submitting a complaint to the Philadelphia Department of Labor, and because the private right of action provides for awards including reinstatement, back pay, compensatory damages, as well as “civil penalties on behalf of the City for each day in which a violation occurs.” In addition, the employee, if they are the prevailing party, will be awarded reasonable attorney’s fees and costs. Civil penalties could be as high as $2,000 per day for each day an employee is absent from work as a result of retaliatory action. This will undoubtedly incentivize legal actions similar to ways that has occurred with the private attorney general laws in California.
Employers located in the city of Philadelphia should carefully review all interactions with employees or contractors who raise complaints regarding potentially unsafe working conditions, as well as their compliance with all orders related to COVID-19 from the city or state Department of Health. The penalties and process under this Philadelphia law are in addition to any claims that the employee may bring pursuant to the Occupational and Safety Health Act (OSHA) with the Department of Labor, or any claims that an employee may bring under contract or other employment laws.
