Seyfarth Synopsis: On March 3, 2022, the Philadelphia City Council voted on and passed the city's third iteration of its COVID-19 paid leave mandate, formerly known as Public Health Emergency Leave ("PHEL") and now known as COVID-19 Leave. Once signed into law by Mayor James Kenney, which is expected in the coming days and may have already occurred according to sources, the bill will go into effect immediately. The law will sunset on December 31, 2023.

On March 3, 2022, for the third time during the pandemic, the Philadelphia City Council passed a bill to provide COVID-19 paid sick leave to eligible employees. It is expected that Mayor Kenney will sign the bill into law. Upon the Mayor's signature, the mandate will be effective immediately, amending the city's PHEL mandate. 

Philadelphia initially enacted its PHEL mandate on September 17, 2020.1 The mandate sunset at the end of 2020. Then, on March 29, 2021, Philadelphia amended its prior PHEL mandate. The city's second PHEL mandate remained in effect until June 10, 2021, and employees' ability to use PHEL ended one week later on June 17. Now, Philadelphia has once again put in place COVID-19 leave.2

Here are some highlights from the city's newly reenacted COVID-19 paid leave ordinance.

Eligible Employees

Under the 2022 COVID-19 leave mandate, eligible employees are those who work for a covered employer and either (a) work within Philadelphia, (b) normally work within Philadelphia but currently telework from any other location due to COVID-19, or (c) work from multiple or mobile locations, so long as 51% or more of such employee's time working is spent in Philadelphia.

Covered Employers

The 2022 COVID-19 leave mandate applies to employers with 25 or more employees.3 Previously, the PHEL mandate only applied to employers with 50 or more employees. 

Amount of Leave

Covered employees who work 40 or more hours per week4 are eligible for 40 hours of COVID-19 leave, unless the employer designates a higher amount. Previously, the PHEL mandate provided such employees with 80 hours of leave.

Covered employees who work less than 40 hours in a week are eligible for COVID-19 leave in an amount equal to the greater of the amount of time the employee is otherwise scheduled to work or actually works, on average, in a 7-day period, unless the employer designates a higher limit.5 Employees whose schedules vary from week to week are eligible for an amount of COVID-19 leave 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 7.

For purposes of COVID-19 leave, exempt employees are assumed to work 40 hours per week, except if their normal workweek is less than 40 hours, in which case the amount of leave they are eligible for is based on that normal workweek.

Use of Leave

COVID-19 leave may be used when an employee is unable to work due to one or more of the following reasons:6

  • A determination by an employer, health care provider, public official, or public health authority having jurisdiction that the employee's presence at work or in the community would pose a risk to others' health due to the employee's exposure to COVID-19 or display of symptoms, regardless of whether such employee has been diagnosed with or tested positive for COVID-19;
  • To care for the employee's family member when the family member's employer, health care provider, public official, or public health authority having jurisdiction has determined that the family member's presence on the job or in the community would pose a risk to others' health due to the family member's exposure to COVID-19 or display of symptoms, regardless of whether such family member has been diagnosed with or tested positive for COVID-19;
  • To care for oneself or one's family member who is self-isolating due to being diagnosed with,testing positive for, or experiencing symptoms of COVID-19;
  • To care for oneself or one's family member who is experiencing symptoms of an illness related to COVID-19 and needs medical diagnosis, care, or treatment;
  • To care for a child when the child's school or place of care has been closed, or the child's childcare provider is unavailable, due to COVID-19 precautions;
  • An employee's need to receive a COVID-19 vaccine, including a booster; or
  • An employee's need to recover from any side effect related to such vaccination.

There is no waiting period or accrual requirement in order to use COVID-19 leave, and employees may use such leave through December 31, 2023. Upon their return from using COVID-19 leave, employees are entitled to job restoration to the same position held when the leave began.

Coordination of Leave Benefits

Overall. COVID-19 leave is in addition to any other paid leave benefits an employer offers, and it will not be reduced by the amount of any paid leave previously received by an employee. Unless state or federal law requires otherwise, employers may not require an employee to use other available paid leave before the employee is eligible to use COVID-19 leave.

Employers may substitute leave under federal or state law, to the extent such leave coincides with COVID-19 leave and the relevant federal or state law permits concurrent use of paid leave. However, employers must provide additional leave if COVID-19 leave exceeds the requirements of federal or state law.

Employer-Provided COVID-19 Paid Leave Policies. Any employer who has adopted a policy providing employees with additional paid leave specifically for use for COVID-19 may substitute leave under that policy for the leave required under Philadelphia's 2022 COVID-19 leave mandate if they coincide. Employers must provide additional COVID-19 leave if the requirements of the 2022 mandate exceed the requirements of the employer's own COVID-19 paid leave policy.

Teleworkers. An employer need not provide additional leave to teleworking employees if the employer's existing policy provides at least 80 hours of paid leave in 2022 that can be used for the same purposes and under the same conditions as set forth in the COVID-19 leave mandate.

Generous Leave Exemption. An employer does not need to provide additional paid leave to employees if the employer's existing policy (a) provides 120 hours7 or more of paid time off in 2022,8 and (b) that time off can be used for the same purposes and conditions as set out in the COVID-19 leave mandate. The employer-provided benefit does not need to be specifically designated as sick leave to take advantage of this exemption.

Individual Notice and Documentation Requirements

When foreseeable, an employee must provide their employer notice of their need for COVID-19 leave as practicable and as soon as feasible. The mandate is silent on whether any notice standard is permitted for unforeseeable absences. An employer may only request that an employee submit a self-certified statement that the COVID-19 leave taken was used for a covered reason.

Payment of Benefits

Employees must be compensated for COVID-19 leave at their regular rate of pay and with the same benefits, including health care benefits, as they normally earn at the time leave is taken.9

Employer Notice and Posting Requirements

Employers must provide employees with a notice of their rights under the COVID-19 leave mandate within 15 days after the ordinance becomes law.

The Philadelphia Promoting Healthy Families and Workplaces ordinance's provisions applicable to employer notice and posting apply to the new COVID-19 leave mandate.10 In the case of remote workers, employers must send the required notification of rights via electronic communication or a conspicuous posting in the employer's web-based platform.

What Else Should Employers Do Now?

Covered employers should immediately take steps to comply with Philadelphia's COVID-19 leave 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 COVID-19 leave 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. 

Footnotes

1. In addition to COVID-19-specific paid sick leave, Allegheny County, Philadelphia, and Pittsburgh each have general, non-COVID-19-specific employer-provided paid leave mandates in effect.

2. Pittsburgh's original COVID-19 specific paid leave ordinance expired on June 10, 2021. However, like Philadelphia, Pittsburgh has reenacted its COVID-19 paid sick leave mandate. The Pittsburgh mandate was reenacted in July 2021 and will remain in effect until July 29, 2022.

3. Currently, the mandate does not specify whether this threshold considers only Philadelphia employees, as opposed to employees across an employer's U.S. workforce.

4. While not expressly stated in the COVID-19 leave mandate, this standard presumably applies to employees who regularly work 40 or more hours per week.

5. Under prior versions of the Philadelphia COVID-19 paid leave mandate, the amount of paid leave benefits available to employees who worked less than 40 hours per week, whether on a regular or varied schedule, was measured over a 14-day period, rather than the 7-day period under the reenacted mandate.

6. Language in the "Use of Leave" section emphasized with bold italics reflects updates since the 2021 PHEL version of the mandate.

7. Employers that use a 7.5 hour workday and consider employees working 37.5 hours per week to be full-time need only provide 112.5 hours of such qualifying leave in order to be exempt from providing additional leave.

8. The 2021 PHEL version of the mandate also had a generous leave exemption, although the threshold was 160 hours, rather than 120 hours.

9. The COVID-19 leave mandate notes that the term "regular rate of pay" follows the definition of the term under 34 Pa. Code § 231.43.

10. Generally, the Philadelphia Promoting Healthy Families and Workplaces ordinance requires covered employers to (1) include the model notice in any employee handbooks it distributes to employees, and (2) either (a) display the model notice in a conspicuous and accessible place in each establishment where covered employees are employed, or (b) supply each employee 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 under certain circumstances.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.