Paid Leave and Coronavirus--Part 27: Philadelphia Enacts 2021 Public Health Emergency Leave; Mandate in Effect

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Seyfarth Synopsis: On March 29, 2021, amendments to the Philadelphia Public Health Emergency Leave mandate went into effect.  These amendments create a 2021 Public Health Emergency Leave (“PHEL”) mandate for employers with 50 or more employees.  The mandate will sunset upon the expiration of the Proclamation of Disaster Emergency of the Governor of Pennsylvania related to the COVID-19 pandemic.

On March 17, 2021, the Philadelphia City Council unanimously passed a bill amending the city’s previous PHEL legislation.[1]  On March 29, 2021, Mayor Kenney signed the amendments into law, effective immediately.  The amendments provide eligible employees up to an additional 80 hours of 2021 PHEL between March 29 and one week following the official termination or suspension of the public health emergency.  Covered reasons for use of available PHEL have been expanded to include leave to receive and recover from COVID-19 vaccinations.

Notably, employers are required to provide covered employees with a notice of rights by April 13, 2021.  The traditional non-COVID-19 paid sick leave benefit under the Philadelphia Promoting Healthy Families and Workplaces ordinance is not generally affected by the 2021 PHEL amendments.  The 2021 PHEL amendments sunset upon expiration of the Proclamation of Disaster Emergency of the Governor of Pennsylvania related to the COVID-19 pandemic.

Key provisions of the 2021 PHEL mandate are summarized below.

Covered Employees

The 2021 PHEL mandate defines employees as those who work for a given employer for 90 or more days and who (1) work within Philadelphia, (2) normally work for a given employer within the City of Philadelphia but are currently teleworking from any other location as a result of COVID-19, or (3) work for a given employer from multiple locations or from mobile locations, provided that 51% or more of such employee’s work time is spent within the City of Philadelphia. 

While the Philadelphia 2020 Public Health Emergency paid leave amendments mandated COVID-19 paid leave for “covered individuals,” specifically including both employees and certain individuals, such as food delivery network company workers and transportation network company workers (regardless of whether the workers were considered employees), the 2021 PHEL mandate appears to apply only to employees.

Covered Employers

The 2021 PHEL mandate applies to employers with 50 or more employees.[2]

Amount of Leave

Employees who work 40 or more hours per week are eligible for 80 hours of 2021 PHEL,[3] unless the employer designates a higher amount.

Employees who work fewer than 40 hours in a week are eligible for an amount of 2021 PHEL equal to the amount of time the employee is otherwise scheduled to work or actually works on average in a 14-day period, whichever is greater, unless the employer designates a higher amount.  Employees whose schedules vary from week to week are eligible for an amount of 2021 PHEL equal to 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.

For purposes of 2021 PHEL, exempt employees are assumed to work 40 hours per week, unless their normal work week is less than 40 hours, in which case they are eligible for an amount of leave based on that normal work week.

Use of Leave

An eligible employee may use 2021 PHEL when he or she is unable to work due to one or more of the following reasons:

  • To care for oneself or a family member when it has been determined by a public official or public health authority having jurisdiction, a health care provider, or an employer, that the employee or family member’s presence on the job or in the community would jeopardize the health of others because of their exposure to COVID-19 or because they are exhibiting symptoms that might jeopardize the health of others, regardless of whether the employee or family member has been diagnosed with COVID-19;
  • To care for oneself or a family member diagnosed with or showing symptoms of COVID-19, or seeking a 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;
  • An employee’s need to obtain a COVID-19 vaccine; or
  • An employee’s need to recover from any injury, disability, illness or condition related to such vaccination.

There is no waiting period or accrual requirement to use 2021 PHEL.  An eligible employee can use their 2021 PHEL any time beginning March 29, 2021 until one week following the official termination or suspension of the public health emergency.  Upon return from 2021 PHEL, the employee is entitled to job restoration to the same position the employee held when the leave commenced.

Coordination of Leave Benefits

Generally, 2021 PHEL is in addition to all other paid leave benefits offered by an employer, and will not be reduced by the amount of any paid leave an employee has previously received, including any PHEL provided in 2020. An employer may not require an employee to use other paid leave available to the employee before the employee is eligible to use 2021 PHEL, unless state or federal law requires otherwise.

Employers may substitute leave under federal or state law to the extent they coincide and the relevant federal or state law permits concurrent use of paid leave. Employers must provide additional leave to the extent that additional 2021 PHEL exceeds the requirements of federal or state law.

If an employer adopted a policy on or after March 6, 2020, which provides employees with additional paid time specifically for use during the COVID-19 pandemic in 2021, the employer may substitute leave under such employer policy for the leave required under the 2021 PHEL mandate to the extent they coincide. Employers only are required to provide additional 2021 PHEL to the extent that the requirements of the mandate exceed the requirements of the employer’s specific COVID-19 pandemic paid leave policy otherwise available to a particular employee on or after January 1, 2021.

For teleworking employees, an employer does not need to provide additional leave if the employer’s existing policy provides at least 80 hours of paid leave in 2021 and that paid leave can be used for the same purposes and conditions as set forth in the PHEL mandate.

An employer does not need to provide additional paid leave to employees if the employer’s existing policy provides 160 hours or more of paid time off in 2021 that is not specifically designated as sick leave, but can be used for the same purposes and conditions as set forth in the PHEL mandate.

Individual Notice and Documentation Requirements

If the need for 2021 PHEL is foreseeable, an employee must provide notice to their employer of the need for leave as practicable and as soon as feasible.  The employer may only request that an employee submit a self-certified statement asserting that the PHEL was used for a covered reason.

Payment of Benefits

Employees must be compensated at their regular rate of pay and with the same benefits, including health care benefits, as the employee normally earns at the time the employee uses the leave.[4]

Employer Notice and Posting Requirements

Employers are required to provide employees with a notice of their rights under the PHEL mandate by April 13, 2021.

The provisions of the Philadelphia Promoting Healthy Families and Workplaces ordinance applicable to employer notice and posting apply to the new mandate.[5]  For remote workers, employers must send the required notification of rights via electronic communication or a conspicuous posting in the web-based platform.  A model notice is available here.

What Else Should Employers Do Now?

Covered employers should take steps as soon as possible to comply with the Philadelphia 2021 PHEL mandate. Here are some steps to consider:

  • Review existing paid time off policies and either implement new policies or revise existing policies to satisfy the PHEL mandate;
  • Monitor the City of Philadelphia’s “COVID-19 pandemic paid sick leave resources” website for additional guidance; and
  • Train supervisory and managerial employees, as well as HR, on the new requirements.

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] Philadelphia joins several other jurisdictions with COVID-19 supplemental or emergency paid sick leave requirements, including California and New York. In fact, New York recently rolled out a COVID-19 vaccine paid leave mandate, which is separate from and in addition to the benefits called for under the state’s COVID-19 Emergency Leave Law. Massachusetts also is considering a COVID-19 emergency paid sick leave mandate.

[2] The mandate does not currently provide instructions on whether this threshold considers only Philadelphia employees or employees across a company’s U.S. workforce.

[3] While not expressly stated in the PHEL mandate, presumably this standard applies to employees who regularly work 40 or more hours per week.

[4] The PHEL mandate notes that the term “regular rate of pay” follows the definition of the term under 34 Pa. Code § 231.43.

[5] The Philadelphia Promoting Healthy Families and Workplaces ordinance generally requires covered employers to (A) include the model notice in any employee handbooks that are distributed to employees, and (B) either (a) display the model notice in a conspicuous and accessible place in each establishment where covered employees are employed, or (b) supply each of their employees with the model notice. The Philadelphia Promoting Healthy Families and Workplaces ordinance notice and posting requirements also include instructions on providing translated versions of the model notice in certain situations.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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