Pittsburgh's paid sick leave law is back on track after the Pennsylvania Supreme Court declared it valid on July 17, 2019, following several years of litigation that delayed its implementation.
In August 2015, Pittsburgh City Council passed and Mayor Bill Peduto signed into law the Paid Sick Days Act, which grants paid sick time to employees who work in the City of Pittsburgh. The law applies to any employer that does business within the City of Pittsburgh and employs more than one person for compensation.
The Pennsylvania Restaurant and Lodging Association and other Pennsylvania businesses challenged the law on the grounds that it is precluded by the business exclusion of Pennsylvania's Home Rule Charter, which limits local actions that burden employers. Both the trial court and the Commonwealth Court ruled in favor of the challengers, which prevented the law from going into effect.
However, in a 4-3 decision, the Pennsylvania Supreme Court upheld the Paid Sick Days Act, concluding that the city did not exceed its home rule authority in enacting the law. It is expected that the city will provide guidance on the law in the near future, including the date the law will go into effect.
The key provisions of the Paid Sick Days Act are as follows:
- Coverage: The sick leave law is inapplicable to independent contractors, state and federal employees, seasonal employees and any member of a construction union covered by a collective bargaining agreement.
- Accrual: Employees will accrue at least one hour of sick leave for every 35 hours of work within the City of Pittsburgh. Employers with 15 or more employees can cap accrual at 40 hours of sick leave per calendar year. Employers with fewer than 15 employees can cap accrual at 24 hours per calendar year. Employees exempt from overtime requirements under the Fair Labor Standard Act are assumed to work 40 hours in each workweek for purposes of sick time accrual, unless their normal workweek is less than 40 hours, in which case sick time accrues based upon their normal workweek.
- Rate of Pay: Sick leave must be paid at the employee's base rate of pay, except that for the first year the law is in effect, the sick leave is unpaid for employees of employers with fewer than 15 employees.
- Waiting Period: Employees may begin using their accrued sick leave on the 90th calendar day of their employment.
- Use of Paid Sick Leave: Eligible employees may use paid sick leave for their own illness or medical care, a family member's illness or medical care and other reasons listed in the ordinance related to public health emergencies. Under the law, a "family member" is defined broadly to include children, parents, spouses and domestic partners, grandparents, grandchildren and siblings.
- Carryover: An employer must permit employees to carry over accrued but unused sick leave to the following calendar year, unless the employer elects to make the maximum amount of required sick leave available to employees at the beginning of the calendar year.
- Payout Upon Separation from Employment: An employer is not required to pay accrued unused sick time upon an employee's separation. However, if the employee is rehired within six months, previously accrued paid sick time that had not been used shall be reinstated.
The law prohibits an employer from retaliating or discriminating
against an employee for exercising his or her rights under the law,
including by using sick leave, filing a complaint under the law,
informing any person about violations of the law or informing any
person about their own rights under the law. The law also generally
prohibits an employer from counting sick time taken under the law
as an absence that may lead to discipline, discharge, demotion,
suspension or any other adverse action.
Significantly, employers will be presumed to have engaged in unlawful retaliation if they take adverse action against an employee within 90 days of the employee exercising any right provided by the law.
- Existing Paid Leave Policies: The law acknowledges that many employers already have paid leave policies. It provides that the employer is not required to provide additional sick time if such policies already make available an amount of paid leave sufficient to meet or exceed the accrual requirements under the new law and that may be used for the same purposes and under the same conditions as sick time under the new law.
- Employee Notice Requirements: An employee must make an oral request to use sick time that includes the anticipated duration of the absence, when possible. The law permits an employer to maintain its own notification policy regarding how soon before an employee's shift the employee must make their oral request to use sick time. The policy must be reasonable and not obstruct an employee's use of sick time. If the employer does not have its own notification policy, an employee need only make a request for sick time at least one hour prior to the start of his or her shift (or as soon as possible if the need for sick time is not foreseeable). If the employee knows of the need for sick time in advance, the employer may require reasonable advance notice of up to seven days of the intention to use such sick time.
- Documentation of Reason for Sick Time: An employer may require an employee to present reasonable documentation that paid sick time has been used for a purpose covered by the law if the use of sick time lasts three or more full consecutive days. However, an employer may not require that the documentation explain the precise nature of the illness.
- Employer Notice Requirements: The law requires employers to give employees notice that they are entitled to sick time; the amount of sick time; the terms of its use guaranteed by the law; that retaliation against employees who request or use sick time is prohibited; and that each employee has the right to file a complaint with the City Controller's Office if required sick time is denied or the employee is retaliated against for requesting or using sick time. An employer that willfully violates the notice requirements is subject to a fine of up to $100 for each offense. The City Controller's Office has posted a "Notice to Employees" that employers are required to post in an area easily accessible to all employees at the job site.
- Recordkeeping Requirements: The law requires employers to retain records documenting hours worked by employees and sick time taken by employees for a period of two years. Failure to do so will result in a rebuttable presumption that the employer violated the law.
- Penalties for Violations: The City Controller's Office has the power to impose penalties and fines for violation of the law and provide all appropriate relief, including but not limited to full restitution to the employee for all lost wages and benefits and reinstatement. An employer that willfully violates the Paid Sick Days Act is subject to a fine of up to $100 for each offense, starting one year after the effective date of the law.
What This Means for Employers
Pittsburgh's new paid sick leave law is another instance of the growing trend in state and local paid sick leave legislation sweeping the country. Pittsburgh employers should immediately review their current paid time off and sick leave policies to determine if they currently meet the requirements of the new law. If they do not, they should consider what revisions are necessary to bring the policies into compliance when the law goes into effect. In addition, Pittsburgh employers should take steps to ensure that they are prepared to post and otherwise provide notice to employees required by the law when it goes into effect, and that they take steps to comply with the law's recordkeeping requirements.
Given that the Paid Sick Days Act contains ambiguities that will require interpretation or further clarification through regulations or guidance, which the city is expected to issue, employers should confer with counsel concerning compliance with the requirements of the law.
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