Philadelphia Expands Emergency Paid Sick Leave Benefits

The September 17 ordinance, which amends the city’s generally applicable paid sick leave law (the Promoting Healthy Families and Workplaces Ordinance), is effective immediately and will expire on December 31, 2020. It requires that “public health emergency leave” be provided to employees, gig workers and other independent contractors, and other workers who are not entitled to paid sick leave under the FFCRA or other federal law.

What qualifies as a public health emergency?

Hiring entities must make public health emergency leave available so long as a public health emergency is in effect and for up to one month following the conclusion of a public health emergency, subject to the December 31, 2020, cutoff date. The new law defines a public health emergency as 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 with the authority to make or issue such a declaration or proclamation.”

Which employers are required to offer public health emergency leave?

The law applies not only to “employers” in the traditional sense, but also to “hiring entities”, which is more broadly defined as any employer who employs a “covered individual”—as described below—as well as any individual, partnership, association, corporation, business trust or combination thereof that pays a wage for services of a covered individual, whether compensation is paid directly or indirectly.

Who is eligible to receive public health emergency leave?

Workers covered under the law include individuals who work in Philadelphia for at least 40 hours in a year for one or more hiring entities, including the following categories of individuals:

• Certain domestic workers
• Workers providing services under the participant-directed and agency homecare model
• Individuals who work for food delivery networks, including drivers
• Individuals who work for a transportation network company, including ride-sharing companies
• Certain healthcare professionals

Workers are presumed to be employees unless a hiring entity can demonstrate that all of the following conditions are met:

• The individual is free from the hiring entity’s control and direction in connection with the performance of the labor or services, both under the contract governing work performance and in fact.
• The individual performs labor or services that are outside the usual course of the hiring entity’s business.
• The individual is customarily engaged in an independently established trade, occupation, profession or business of the same nature as that involved in the labor or services performed.

Under which circumstances may paid emergency health leave be used?

Covered individuals may use paid emergency health leave during the covered time period if they are unable to work due to one or more of the following circumstances:

• Being subject to a federal, state or local quarantine order related to the public health emergency.
• Being advised by a healthcare provider to self-quarantine due to concerns related to the public health emergency.
• Experiencing symptoms related to the public health emergency and seeking a medical diagnosis.
• Caring for an individual who is subject to a federal, state or local quarantine order related to the public health emergency.
• Caring for a child of such covered individual if the child’s school or place of care has been closed, or if the childcare provider is unavailable, due to precautions taken in accordance with the public health emergency.
• Experiencing any other substantially similar condition specified by the U.S. Secretary for Health and Human Services in consultation with the U.S. Secretary of the Treasury and the U.S. Secretary of Labor.

What amount of paid leave is required?

Covered individuals who work 40 hours or more per week are entitled to the greater of 80 hours of paid leave or an amount equivalent to their average work hours over a 14-day period, up to a maximum of 112 hours. Employees exempt from overtime requirements under the Fair Labor Standards Act (such as executive, administrative, professional and outside sales employees) are presumed to work a 40-hour workweek unless their normal workweek is less than 40 hours, in which case the amount of paid leave is based on their normal workweek.

Covered individuals who work less than 40 hours per week are entitled to receive leave in an amount equal to the number of hours worked on average in a 14-day period for each hiring entity by which they are employed. For individuals who work for more than one hiring entity, the Mayor’s office will be establishing a centralized system that will calculate public health emergency leave attributed to each hiring entity and will collect and distribute funds from such entities to covered individuals in their employ.

A covered individual’s pay rate will be their regular rate of pay, including healthcare benefits, that the individual normally earns at the time the individual uses the paid emergency health leave. A tipped employee’s pay rate will be based on the standards set forth in the regulations implementing Philadelphia’s Fair Workweek ordinance.

When is an individual not entitled to paid emergency health leave?

Individuals who can reasonably work remotely, despite facing one of the qualifying conditions, are not eligible for paid emergency health leave. In addition, individuals who are eligible for paid leave under the FFCRA, or who work for hiring entities that have existing leave policies which provide an equivalent amount of sick leave that can be used under the same conditions as the new law, will not be entitled to paid emergency health leave.

What else do employers need to know?

Prohibited Actions by Hiring Entities. Hiring entities may not require covered individuals to find coverage for any shift during which public health emergency leave is used nor count any leave time as an absence that may lead to discipline or any other adverse action. In addition, hiring entities are prohibited from taking any retaliatory or discriminatory measures against covered individuals who use public health emergency leave.

Notice Requirements. Hiring entities must provide covered individuals with notice of their right to public health emergency leave under the new law by no later than October 9, 2020. If workers work remotely, or if the hiring entity has no physical location, the entity must provide notice via electronic communication or a conspicuous posting on a web-based platform.

The Coronavirus Task Force at Klehr Harrison stands ready to assist you in your business and legal needs. We will continue to provide additional information and guidance as the COVID-19 situation develops.

Author Adrienne Beatty is an associate in the  associate in the Corporate & Securities Department.