Rebecca J. Reist
On March 3, 2022, the Philadelphia City Council passed an ordinance amending the City’s Public Health Emergency Leave Law that requires many Philadelphia employers to provide their employees with paid leave for absences related to COVID-19. Mayor Jim Kenney signed the bill on March 9, 2022, and it went into effect immediately after signing. The ordinance provides that employees may use this new paid COVID-19 leave for their inability to work based on one or more of the following reasons:
- the employee’s presence on the job or in the community would jeopardize the health of others because of the employee’s exposure to COVID-19, or because the employee is exhibiting symptoms, regardless of whether the employee has been diagnosed with or has tested positive for COVID-19;
- to care for a family member who has been exposed to COVID-19 or who exhibits symptoms that may jeopardize the health of others, regardless of whether the family member has been diagnosed or having tested positive for COVID-19;
- to self-isolate because the employee was diagnosed or tested positive for COVID-19, because the employee is experiencing symptoms of COVID-19, or to seek medical care if experiencing symptoms of an illness related to COVID-19;
- to care for a family member who is self-isolating because the family member was diagnosed or tested positive for COVID-19, because the family member is experiencing symptoms of COVID-19, or to seek medical care if experiencing symptoms of an illness related to COVID-19;
- to care for a child if their school has been closed or their childcare provider is unavailable due to precautions taken in response to COVID-19;
- to obtain a COVID-19 vaccination or booster; or
- to recover from any side effect related to a COVID-19 vaccination.
The ordinance applies to employers with 25 or more employees. Those employers must allow their employees who work 40 or more hours per week to take 40 hours of paid COVID-19 leave. Eligible employees who work fewer than 40 hours in a week must receive paid leave equal to the amount of time they are otherwise scheduled to work, or actually work, on average in a seven-day period, whichever is greater. If an employee’s schedule varies week-to-week, employers must determine the amount of time that employee worked on average in a seven-day period by calculating the average number of daily hours that the employee was scheduled for over the past 90 workdays, including hours the employee took leave of any type, multiplied by seven. Employees are to be paid their regular rate of pay, as well as their regular benefits.
The employees covered by the ordinance must work for their employer within the City of Philadelphia after the effective date of the Ordinance, must normally work for their employer in the City of Philadelphia but are currently teleworking from any other location as a result of COVID-19, or work for their employer from multiple locations or from mobile locations, provided that 51 percent or more of the employee’s time is spent within the City of Philadelphia.
Paid COVID-19 leave under the ordinance is in addition to other paid leave offered by an employer and cannot be reduced by the amount of any paid leave an employee previously received. Additionally, an employer may not force an employee to use other paid leave available to the employee before the employee is eligible to use paid COVID-19 leave (unless state or federal law requires otherwise). However, an employer is not required to change their existing policy or provide additional paid leave to employees if the employer’s existing policy provides 120 hours or more of paid time off in 2022, whether or not such leave is specifically designated as sick leave, if such leave can be used for the same purposes and under all of the same conditions as COVID-19 leave.
To obtain the leave, employees must provide their employer with notice of their need for leave “as practicable and as soon as feasible,” but only when the need for the leave is foreseeable. An employer is permitted only to request that an employee submit a self-certified statement asserting that leave was used according to the purposes listed under the law.
Within 15 days after the ordinance’s effective date, employers must provide employees with a notice of rights that explains that (1) they are entitled to leave, the amount of leave, and the terms of its use guaranteed under the law, and (2) retaliation against employees who request or use the leave is prohibited and each employee has the right to file a complaint or bring a civil action if leave, as required by the law, is denied by the employer or the employee is retaliated against for requesting or taking the leave. This information must also be included in any employee handbooks that are distributed to employees.
Employers must notify employees by either (1) supplying each of their employees with a notice, or (2) displaying a poster in a conspicuous and accessible place in each establishment where such employees are employed. If an employee does not maintain a physical workplace, or if an employee teleworks or performs work through a web-based platform, the required notification must be sent by electronic communication or a conspicuous posting in the web-based platform. The City of Philadelphia published a Pandemic Paid Sick Leave Notice Poster, which can be found here: Pandemic Paid Sick Leave Notice Poster.
Leave under the ordinance was immediately available to employees as soon as the ordinance was signed into law without any waiting period or accrual requirements and will expire on December 31, 2023.