On September 17, 2020, Philadelphia, Pennsylvania Mayor Phil Kenney signed File Number 200303, an amendment to the city’s generally applicable paid sick and safe time law, the Promoting Healthy Families and Workplaces Ordinance (PHFWO). The amendment requires new public health emergency leave (PHEL) for employees, gig workers, and others who do not receive leave under the federal Families First Coronavirus Response Act (FFCRA). The emergency leave requirements take effect immediately, but generally will expire on December 31, 2020. Additionally, on September 9, 2020, the mayor signed File Number 200306, which took effect immediately and permanently amends the PHFWO by adding a new statute requiring compensation and medical care or reimbursement for certain healthcare employees who contract a disease during a declared pandemic or epidemic.
Public Health Emergency Leave
What Qualifies as a Public Health Emergency: A public health emergency (PHE) is an 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. How long a PHE remains in effect will depend on the start-end dates the declaration or proclamation uses, or when an official terminates the declaration or proclamation.
Covered Employers & Employees: The law not only applies to an “employer,” but also to a “hiring entity.” Under the law, covered workers are employees and individuals who perform at least 40 hours of work in Philadelphia in a year for one or more hiring entities, including the following individuals: various domestic workers; individuals providing services under the participant-directed and agency homecare model; individuals who work for food delivery networks, including drivers; individuals who work for transportation network companies, including drivers; certain health care professionals.
Notably, the law presumes an individual performing work for a hiring entity is an employee, unless the hiring entity demonstrates all the following conditions are met: A) The individual is free from the hiring entity’s control and direction in connection with the performance of the labor or services, under the contract and in fact; B) The individual performs labor or services that are outside the hiring entity’s usual course of business; and C) 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.
For hiring entities with unionized workforces, any or all of the law’s requirements may be waived via collective bargaining agreement (CBA) that is in effect. The waiver must be clear, unmistakable, and in the CBA, and the CBA must provide a comparable paid leave benefit.
Amount of Leave: A hiring entity must provide public health emergency leave when a public health emergency is declared or proclaimed, or on the covered individual’s hiring date during a public health emergency.
Individuals who work 40 hours or more per week receive 80 hours or an amount of leave equal to their average hours worked over a 14-day period (see below), whichever is greater, up to a maximum of 112 hours. Bona fide executive, administrative, professional, and outside sales employees are assumed to work 40 hours in each workweek unless their normal workweek is less than 40 hours, in which case the amount of leave is based on their normal workweek.
Individuals who work fewer than 40 hours per week receive an amount of leave equal to the amount of hours they worked on average in a 14-day period.
For individuals whose hours vary from week to week, a hiring entity must use the following calculation to determine the average hours in a 14-day period:
- A number equal to the average hours the individual worked per day over the 6-month period ending on the date the public health emergency was declared, multiplied by 14, including any hours for which the individual took leave of any type;
- If the individual did not work over such period, the individual’s reasonable expectation at the time of hiring of the average hours the individual would normally receive in a typical 14-day period.
Notably, the Philadelphia law takes a unique approach when individuals work for multiple hiring entities (as one might expect with, e.g., drivers for food delivery or transportation network companies). The mayor’s Office of Labor must establish a centralized system for calculating PHEL attributed to each hiring entity, then collect PHEL funds from hiring entities and distribute them to covered workers. However, until that system is established, an individual is entitled to PHEL from each hiring entity for whom the individual performed work during the public health work period according to forthcoming regulations.
PHEL is not necessarily a one-time benefit. Rather, it is available each time a public official declares a public health emergency based on a different emergency health concern or declares a second public health emergency for the same emergency health concern more than one month after the first emergency officially ended.
Another unique aspect of Philadelphia’s law is that hiring entities might be able to use existing benefits to comply. The law does not require a hiring entity to change existing policies or provide additional paid leave if its existing policy provides an amount of paid sick leave that meets or exceeds the amount of PHEL the law requires that may be used for the same purposes and under the same conditions the law requires. Some city councilmembers observed that the law did not clarify whether hiring entities that used a combined paid time off program (e.g., PTO individuals can use for vacation and sick time) would need to provide additional leave. Councilmembers agreed to work with the city’s labor and legal departments to clarify the language to indicate that no additional leave time would be required in such circumstances.
Covered Uses: A covered individual may use PHEL at any time during the public health emergency (and possibly for one month following the conclusion of such emergency1) when unable to work for one or more of the following circumstances:
- the individual is subject to a federal, state, or local quarantine or isolation order related to the public health emergency;
- a health care provider advises the individual to self-quarantine due to concerns related to a public health emergency;
- the individual is experiencing symptoms related to a public health emergency and is seeking a medical diagnosis;
- caring for an individual who is subject to a federal, state, or local quarantine or isolation order related to the public health emergency, or who a health care provider advises self-quarantine due to concerns related to a public health emergency;
- 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 accordance with the public health emergency response; or
- experiencing any other substantially similar condition specified by the United States Secretary of Health and Human Services in consultation with the United States Secretary of the Treasury and the United States Secretary of Labor.
A hiring entity is not required to allow a covered individual to use PHEL if the individual can reasonably perform work remotely, considering all relevant circumstances that affect the individual’s ability to perform remote work.
To the extent a federal or state law requires hiring entities to provide paid leave or paid sick time related to a public health emergency, hiring entities may require PHEL to run concurrently with such leave unless the other law prohibits concurrent use of paid leave. Related, the law requires hiring entities to provide additional PHEL to the extent the Philadelphia law’s requirements exceed the requirements of the other laws.
Individuals can use PHEL in the smaller of hourly increments or the smallest increment that the entity’s payroll system uses to account for absences or use of other time.
When leave ends, hiring entities must return covered individuals to the position they held when leave began.
Requesting, Verifying & Documenting Leave: Individuals must provide notice to a hiring entity as practicable and as soon as feasible, but only when the need for leave is foreseeable. The law does not address notice, if any, individuals must provide for unforeseeable absences. A hiring entity can request that a covered individual submit a self-certified statement asserting that leave was used for a lawful purpose.
The only discussion the law contains about documentation to substantiate a need for leave is a provision saying a public official’s public statement constitutes reasonable documentation for the use of PHEL, and that an individual is not required to provide their hiring entity documentation from a public official. The law does not address when entities can ask individuals to provide documentation, or what other forms of documentation may be reasonable to request, if any. For example, although part of the PHFWO, currently it is unclear whether PHFWO standards will apply to PHEL.
Rate of Pay: Hiring entities must pay PHEL at the worker’s regular rate of pay, and with the same benefits, including health care benefits, as the individual normally earns from the hiring entity, which cannot be less than the state minimum wage. Interestingly, the law cites to state overtime law for purposes of calculating the “regular” rate, something the general paid sick and safe time ordinance does not expressly do.
Similarly, for tipped employees, rather than incorporate standards in the pre-existing ordinance, the law incorporates pay standards in regulations implementing Philadelphia’s fair workweek ordinance:
- If paid at least $7.25 per hour by the hiring entity, the rate of pay is the hourly amount paid to the individual by the hiring entity;
- If paid less than $7.25 per hour by the hiring entity, the rate of pay is the numerical average of the following (published by the Pennsylvania Department of Labor and Industry):
- the hourly wage for Standard Occupational Classification (SOC) Code 35-3011 “Bartenders”;
- the hourly wage for SOC 35-3031 “Waiters & Waitresses”; and
- the hourly wage for SOC 35-9011 “Dining Room & Cafeteria Attendants & Bartender Helpers.”
Prohibitions: A hiring entity cannot require an individual to find coverage for any shift during which the individual uses PHEL. Additionally, it or any other person cannot interfere with, restrain, or deny the exercise of, or the attempt to exercise, any right under the law.
Hiring entities cannot take retaliatory personnel action or discriminate against an individual for exercising protected rights, including but not limited to, using PHEL, filing a complaint or informing any person about any entity’s alleged violation, cooperating with the mayor’s Office of Labor in its investigations of alleged violations, and informing any person of the individual’s right under the law. Protections apply to a person who mistakenly but in good faith alleges a violation. Additionally, there is a rebuttable presumption of retaliation whenever a hiring entity discharges, suspends, demotes, or takes other adverse action against a person within 90 days of the individual (a) filing a complaint alleging a violation with the Office of Labor or a court, (b) informs any person about an entity’s alleged violation, (c) cooperates with the Office of Labor or others investigating or prosecuting any alleged violation, or (d) opposes any unlawful policy, practice, or act.
The law prohibits a hiring entity’s absence control policy from counting PHEL as an absence that may lead to or result in discipline, discharge, demotion, suspension, or any other adverse action, though a hiring entity can take action against an individual who uses PHEL for a reason the law does not permit.
End of Employment: A hiring entity need not cash out unused PHEL upon an individual’s termination, resignation, retirement, or other separation from employment. However, if it rehires the individual within six months of separation, the entity must reinstate the previous amount of PHEL the individual had when the working relationship ended.
Notice, Posting & Recordkeeping Requirements: Within 15 days of the law taking effect, a hiring entity must provide individuals notice of their rights.2 Entities must give notice that: (a) individuals are entitled to PHEL, the amount of PHEL, and the terms of its use guaranteed under the law; (b) retaliation against individuals who request or use PHEL is prohibited and that individual has the right to file a complaint or bring a civil action if PHEL is denied or the individual is retaliated against for requesting or PHEL. Entities comply with this requirement by either supplying each individual a notice that contains the required information or conspicuously displaying a poster that contains the required information in an accessible place in each establishment where such employees are employed. The notice must be provided in English and in any language that is the first language spoken by at least 5% of the employer’s workforce.
If employees telework or work through a web-based platform, or the hiring entity has no physical location, the entity must furnish notice through electronic communication or a conspicuous posting in the web-based platform.
For a period of two years, entities must keep records documenting hours worked, PHEL taken by employees and payment for PHEL. If the entity does not maintain or retain adequate records, or allow the enforcement agency access, it is presumed that the employer has violated the law, absent clear and convincing evidence otherwise.
Penalties & Enforcement: An individual may file a complaint with the mayor’s Office of Labor within a year of the date the person knew or should have known of the alleged violation. Alternatively, within two years from the date an alleged violation occurred, an aggrieved individual, or any entity whose member is aggrieved by a violation, can file an individual or class action lawsuit. However, unlike with the paid sick and safe time requirements in the law, an individual need not first file an administrative complaint before filing a lawsuit if a public health emergency has been declared.
Presumably, given the amendments incorporate the pre-existing paid sick and safe time ordinance’s enforcement provision, it also incorporates those penalties and damages. If so, that means a willful notice and posting violation is subject to a civil fine in an amount not to exceed $100 for each separate offense. Failing to pay for PHEL used, unlawfully denying PHEL, and retaliation claims carry potential criminal penalties. An individual can recover the full amount of unpaid PHEL, any wages and benefits lost or other damages suffered as the result of the violation of the law, and an equal amount, up to a maximum of $2,000, as liquidated damages. Additionally, the individual can recover reasonable attorney’s fees, and receive appropriate legal or equitable relief, including, but not limited to, reinstatement, back pay and injunctive relief.
Pool & Healthcare Employee Benefits During a Declared Pandemic or Epidemic
The new statute, section 9-4117, applies to any employer that provides healthcare services and utilizes the services of “pool” employees or healthcare employees. The law defines a pool employee as any health care professional, other than an employee of a temporary placement agency, who works only when the individual indicates availability for work and who has no obligation to work when not indicating availability. Additionally, it defines a health care employee as any person who has full- or part-time employment within a healthcare organization, including but not limited to hospitals, nursing homes, and home healthcare providers. Finally, under the law, a health care professional is any person licensed under federal or Pennsylvania law to provide medical or emergency services, including but not limited to doctors, nurses and emergency room personnel. Notably, although generally the PHFWO contains a collective bargaining exception for employers with unionized workforces, it does not apply for purposes of section 9-4117.
The law requires that pool and healthcare employees are compensated for lost wages and medical expenses if they contract a communicable disease during a pandemic or epidemic affecting the City of Philadelphia declared to exist by the World Health Organization, the Centers for Disease Control and Prevention, or other recognized public interest health organization. Although the bill’s title suggests benefits are available when employees contract the disease “at work,” this language is not included in the actual bill text.
To receive these benefits, the employee must have worked for/been in the service of the employer at least 40 hours in the three months before the disease.
Employers must reimburse an employee for all lost wages related to the disease (isolation, treatment and recovery) when the employee is unable to work. The law requires reimbursement for the number of days the employee is unable to work, payable at the employee’s normal rate, in an amount equal to the number of work days the employee would have worked if the disease had not been contracted, which must be equal to the average number of days worked per week during the three months before contracting the disease.
Additionally, the employer must either reimburse the employee for all medical expenses related to treatment for the communicable disease or provide such care as needed at its facility at no cost to the employee.
Currently, it is unclear whether various pre-existing PHFWO provisions will apply to this new statute, e.g., when employers can request documentation supporting an absence. We hope the enforcement agency clarifies this issue via regulations or FAQ.
It is unclear when regulations or guidance concerning either new requirement will issue. Until that happens, the statutory text is all covered entities have. Because both new requirements took effect immediately, covered entities should consider immediate action, like consulting employment counsel to review and revise, if necessary, policies and practices to ensure they comply with the new requirements.