Philadelphia Adopts Public Health Emergency Leave Ordinance

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Q: What do I need to know about the recently enacted Philadelphia ordinance providing Philadelphia employees with paid public health emergency leave?

A: On September 17, Philadelphia Mayor Jim Kenney signed an ordinance, providing paid “public health emergency” leave benefits to workers in Philadelphia who physically report to their jobs and who may not have been covered by the Families First Coronavirus Response Act (FFCRA) — including employees working for businesses with more than 500 employees. The ordinance applies to all employees (and some nonemployees, including independent contractors) working within the geographic boundaries of the City of Philadelphia for at least 40 hours in a year. Potential nonemployees covered by the ordinance include domestic workers (e.g., housekeepers), health care professionals, home care workers, and gig workers (e.g., individuals driving for rideshare or food delivery services).

For purposes of this ordinance, a “public health emergency” is “a declared or proclaimed emergency related to a public health threat, risk, disaster, or emergency that affects Philadelphia that is made or issued by a federal, state, or local official.” Under the ordinance (and similar to FFCRA’s emergency paid sick leave provisions), workers can take paid leave if they cannot work due to one or more of the following reasons:

  1. being subject to a federal, state, or local quarantine or isolation order related to the public health emergency;
  2. being advised by a health care provider to self-quarantine due to concerns related to the public health emergency;
  3. experiencing symptoms related to the public health emergency and seeking a medical diagnosis;
  4. caring for an individual who is subject to a quarantine order or who has been advised to self-quarantine (as outlined in numbers 1 and 2 above);
  5. caring for a child of a covered individual if the child’s school or place of care has been closed, or the childcare provider is unavailable due to precautions taken in response to the public health emergency; or
  6. 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.

Workers may utilize this new public health emergency leave at any time during the public health emergency and for one month afterward. Public health emergency leave is compensated at a worker’s regular rate of pay. Also, like the FFCRA, if a worker can perform work remotely, the worker is not entitled to public health emergency leave under the Philadelphia ordinance. Importantly, workers cannot “double dip” — if an employee is entitled to leave under the FFCRA, they are not entitled to public health emergency leave.

Workers working 40 or more hours per week are entitled to the greater of: (a) a minimum of 80 hours of leave or (b) leave equal to the average hours worked over a 14-day period up to a maximum of 112 hours. Workers working less than 40 hours per week are entitled to leave in lesser amounts based on the number of hours they work in a 14-day period (utilizing a formula outlined in the ordinance).

Of interest, the City of Philadelphia has committed to establishing a “centralized portable benefits system for calculating public health emergency leave attributed to each hiring entity” for workers who work for multiple hiring entities, such as workers working for multiple food delivery or rideshare companies.

Although adopted in response to the COVID-19 pandemic, the ordinance is drafted in a way that could easily be re-adopted for future public health emergencies. The amount of hours available to employees will replenish “each time: (a) a public official declares a new public health emergency based on a different emergency health concern; or (b) a public official declares a second public health emergency for the same emergency health concern more than one month after the first public health emergency has officially ended.” Despite the ordinance’s references to other public health emergencies, it currently is set to expire on December 31.

How does this impact employers already providing generous paid leave benefits? The ordinance states that if an employer or hiring entity already provides an amount of paid leave that satisfies or exceeds the amount of public health emergency leave available under the ordinance (and employees may use it for any of the purposes outlined above), the employer does not need to provide additional public health emergency leave.

The ordinance does not strictly apply to employees subject to collective bargaining agreements (CBAs) and may be mutually waived by the parties to a CBA, as long as the CBA contains a comparable paid leave benefit.

Employers and hiring entities must also provide notice of the new ordinance to all employees within 15 days of the ordinance’s effective date. The ordinance does not provide an effective date so employers should assume that they must comply with the notification requirement by October 2.

The ordinance contains ambiguities, and it is expected that the City of Philadelphia will release regulations to clear up confusion. In the meantime, employers with physical operations in Philadelphia (especially those not covered by the FFCRA — i.e., those with more than 500 employees) should work with legal counsel to ensure the proper implementation of the new city ordinance.

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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