Philadelphia amends and expands Paid Leave law

The City of Philadelphia passed two ordinances related to paid sick leave. Ordinance 200306 amends the city's paid sick and safe time law (also known as the Promoting Healthy Families and Workplaces Ordinance (PHFWO)). Ordinance 200303 requires new public health emergency leave (PHEL) for workers who do not receive leave under the federal Families First Coronavirus Response Act (FFCRA).

Ordinance 200306:

Ordinance 200306 requires certain healthcare employees who contract a disease during a declared pandemic or epidemic to receive compensation and medical care or reimbursement. Ordinance 200306 is effective immediately.

Ordinance 200303:

Ordinance 200303 requires PHEL for employees, gig workers, and others who are not entitled to leave under the federal FFCRA. Under the law, a public health emergency (PHE) is an emergency related to a public health threat or risk in Philadelphia and is declared by a federal, state, or local official.

Covered Employees:

The law covers employees and individuals who perform at least 40 hours of work per year in Philadelphia for an employer or hiring entity. This includes domestic workers, certain healthcare professionals, home healthcare workers, food delivery workers, and transportation workers.

Reasons for Leave:

Covered workers may use leave when they're unable to work for reasons such as:

• They're subject to a federal, state, or local PHE-related quarantine or isolation order related to the PHE;
• A health care provider advised them to self-quarantine due to concerns related to a PHE;
• They're experiencing symptoms related to a PHE and are seeking a medical diagnosis;
• Their child's school or place of care has been closed, or their childcare provider is unavailable, due to PHE precautions;
• They're caring for an individual who is subject to a federal, state, or local quarantine or isolation order, or whose health care provider advises that individual to self-quarantine due to PHE concerns; or
• They're experiencing any other substantially similar condition specified by the U.S. Secretary of Health and Human Services in consultation with the U.S. Secretary of the Treasury and the U.S. Secretary of Labor.

Note: Workers aren't entitled to PHEL if they can reasonably perform work remotely, considering all relevant circumstances that affect their ability to perform remote work.

If a federal or state law requires a hiring entity to provide paid leave or paid sick time related to a PHE, the hiring entity may require PHEL to run concurrently with such leave unless another law prohibits concurrent use. Hiring entities must also provide additional PHEL if Philadelphia law's requirements exceed the requirements of other laws.

Amount of PHEL:

Covered employees are entitled to leave based on the number of hours worked:

Leave can be taken in increments as small as the lowest increment that an entity's payroll system uses to track absences or other uses of time.

Relationship to existing paid leave policies:

The law doesn't require a hiring entity to change its existing sick leave policies or provide additional paid leave if it already provides paid sick leave that meets or exceeds the requirements of the law. Under existing policies, employees must be able to use their leave for the same purposes and under the same conditions.

Employee Notice:

When the need for leave is foreseeable, workers must provide notice as soon as feasible. A hiring entity cannot require an individual to find coverage for any shift during which the individual uses PHEL.

A hiring entity can request that workers submit self-certified statements declaring that leave was used for a lawful purpose. If employers elect this option, it's a best practice to request certification on a consistent basis.

Employer Notice:

By October 2, 2020, hiring entities must provide notice to individuals that they're entitled to PHEL. The notice must also indicate that retaliation for requesting or using PHEL is prohibited. The notice must be provided in English and in any language that is the first language spoken by at least 5% of the employer's workforce.

Employers can satisfy this request by posting a notice in a conspicuous area of the workplace or by supplying each individual with a copy of the notice. If employees perform telework, or the hiring entity doesn't have a physical location, the notice can be furnished electronically.

Pay:

Workers are entitled to their regular rate of pay during PHEL, with the same benefits, including health insurance.

Reinstatement:

When leave ends, hiring entities must return covered individuals to the position they held when their leave began.

Recordkeeping:

A hiring entity must keep, for at least two years, records documenting hours worked, PHEL taken by employees, and payment for PHEL.

Anti-retaliation:

Employers are prohibited from taking adverse action against an employee for exercising their rights under the law and/or interfering with an employee's ability to take PHE. This includes counting a PHEL absence against an employee for purposes of the entity's absence control policy.

Update (December 2020):

The City released regulations implementing Ordinances 200306 and 200303. The regulations define key terms and clarify the circumstances under which each type of leave benefit may be used. Below is a summary:

PHEL:

• Covered employers: Any hiring entity that employs a covered individual, unless the employer provides paid leave that can be used for the same purposes and under all the same conditions as PHEL andprovides leave in the same or greater amount as required under applicable City law.
• When leave may be taken: Covered individuals may use PHEL for a COVID-19 related purpose beginning on September 17, 2020, and continuing until the earlier of one month after the conclusion of the Public Health Emergency or December 31, 2020. A hiring entity is not required to allow a covered individual to take PHEL if they're reasonably able to perform work remotely.
• Reasonable documentation: Reasonable documentation of the need for leave may include, but is not limited to, a public statement from a government official, the City Department of Public Health, or the Center for Disease Control if the statement specifically addresses the covered individual's circumstances. Documentation from a governmental official is not required; however, an employer may require a signed statement from an employee affirming leave was for a covered reason. Consistent with CDC guidance, employers may not require a note from a health care professional.

Health Epidemic Leave:

• Covered employers: Any employer that provides healthcare services and employs 10 or more employees for at least 40 weeks in a calendar year must provide Healthcare Epidemic Leave.
• When leave may be taken: Covered individuals are entitled to Healthcare Epidemic Leave for the time period in which the employee is unable to work due to the employee's contraction of COVID-19. The date leave begins shall be the earlier of: (a) the date of the first positive COVID-19 test; or (b) the date the employee's isolation begins pursuant to either a federal, state, or local governmental isolation order; or a written isolation recommendation from either a healthcare employer or a healthcare provider.
• Reasonable documentation: The following are examples of acceptable documentation: (a) a positive COVID-19 test or written communication from a healthcare provider indicating a positive COVID-19 test; (b) a federal, state, or local governmental isolation order; or (c) a written isolation recommendation from a healthcare provider.
• Interaction with other types of leave: A employee that chooses to take Healthcare Epidemic Leave from a given Health Care Employer is not entitled to take any other leave benefit for the same purpose. Additionally, the Health Care Employer may not require the employee to use the other leave concurrently.

Common Reasons for Leave:

The regulations provide a chart to illustrate some common circumstances in which leave may be permitted. The list isn't intended to be exhaustive.

Compliance Recommendations:

Employers with employees in Philadelphia should review their policies and practices to ensure compliance with both ordinances and the new regulations. Please contact your dedicated service professional with any questions.