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Philadelphia Employers Must Now Offer Paid COVID Sick Leave Through December 2023

Posted: March 24, 2022

On March 10, 2022, Mayor Jim Kenney signed bill 220051-A expanding COVID-19 Supplemental Paid Sick Leave (SPSL) until December 31, 2023. The law requires covered employers to give eligible employees up to 40 hours of additional paid time off for specified COVID-19 purposes, with only limited exceptions. While the new ordinance in many ways mirrors the language of Philadelphia’s 2021 COVID-19 paid leave ordinance, it includes some significant differences in terms of what employers are covered by the new ordinance and how much paid leave an employer is required to provide.

Coverage

Under the new law, a “covered employer” that is required to provide SPSL, is defined as an employer with 25 or more employees – a notable reduction from the 50 or more employee definition in the 2021 version of the Philadelphia COVID sick leave law. The ordinance does not specify how employers should calculate the “25 or more” employee threshold, however it does place parameters around which employees qualify for SPSL leave, which informs the employer’s calculation. A “covered employee” is defined as someone who, prior to the ordinance’s enactment, worked for a covered employer and:

  1. Works in Philadelphia;
  2. Normally works in Philadelphia but currently telecommutes from outside the city as a result of COVID-19; or
  3. Works from multiple or mobile locations but spends 51% of the time working in Philadelphia.

Leave Covered

SPSL must be offered for employees to use under the following circumstances:

  1. When a public official, public health authority, health care provider, or an employer determines that the employee’s presence on the job or in the community would jeopardize others’ health because of the employee’s exposure to COVID-19 or the employee is exhibiting symptoms that might jeopardize others’ health, regardless of whether the employee has a positive COVID-19 diagnosis or test result;
  2. To care for a family member because a public official, health authority, health care provider, or employer’s determination that the family member’s presence on the job or in the community would jeopardize others’ health because of the family member’s exposure to COVID-19 or the employer’s determination that the family member is a danger to others’ health because the family member is exhibiting symptoms that might jeopardize others’ health, regardless of whether the family member has a positive COVID-19 diagnosis or test result;
  3. An employee needs to: (i) self-isolate due to a positive COVID-19 diagnosis or test result; (ii) self-isolate due to experiencing symptoms of COVID-19; or (iii) seek or obtain medical diagnosis, care, or treatment if experiencing symptoms of an illness related to COVID-19;
  4. To care for a family member who: (i) is self-isolating due to a positive COVID-19 diagnosis or test result; (ii) is self-isolating due to experiencing symptoms of COVID-19; or (iii) needs medical diagnosis, care, or treatment if experiencing symptoms of an illness related to COVID-19;
  5. To care for a child whose school or place of care has been closed, or whose childcare provider is unavailable, due to precautions taken in response to COVID-19;
  6. To obtain a COVID-19 vaccine, including a booster; or
  7. To recover from any side effect related to a COVID-19 vaccination.

Leave Entitlement

Covered employers must frontload COVID-19 leave, rather than utilize an accrual method, and provide SPSL to their qualifying employees as follows (unless the employer meets one of the limited exceptions described below):

  1. Employees who work 40 or more hours per week receive at least 40 hours of supplemental COVID leave, unless their employer provides a greater amount.
  2. Employees who work fewer than 40 hours per week receive an amount equal to the amount of time they are scheduled to work or actually work on average in a 7-day period, whichever is greater, unless the employer provides a greater amount.
  3. Employees whose weekly schedule varies receive 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 seven.

For purposes of the SPSL, the ordinance assumes that those who are deemed exempt under the Fair Labor Standards Act (“FLSA”) work 40 hours per week unless their established work week is less than 40 hours. For FLSA exempt employees working less than 40 hours in a work week, the amount of leave entitlement is calculated using the employee’s normal workweek.

Use with Existing Paid Leave

The ordinance explicitly provides that COVID-19 leave benefits are in addition to all other paid leave benefits. Accordingly, an employer generally cannot reduce the amount of SPSL provided to an employee by the amount of paid leave an employee previously received under the employer’s regular sick, vacation or other paid time off policies.

However, under limited circumstances, employers can rely on existing leave to satisfy SPSL requirements:

  1. When an employee completes most of their work through telework, employers need not change existing policies or provide additional paid leave if existing policies provide teleworking employees with at least 80 hours of paid leave in 2022 and employees can use such paid leave for the same purposes and under all of the same conditions as in the ordinance.
  2. An employer need not change an existing leave policy or provide additional paid leave to employees if its policy provides at least 120 hours of paid time off in 2022 if employees can use leave for the same purposes and under all of the same conditions as the ordinance requires.
  3. If an employer adopted a policy that provides employees with additional COVID-19 paid time off, the employer may substitute leave under that policy for COVID-19 leave to the extent they are duplicative but need only provide additional COVID-19 Leave to the extent the new ordinance’s requirements exceed the employer’s current COVID-19 paid leave policy.

Employees can use leave in one (1) hour increments, or the smallest increment the employer’s payroll system permits in recording absences or use of other time off.

Rate of Pay

Employers must pay SPSL at the employee’s regular rate of pay, which must be calculated using the same formula that the employer would use in calculating overtime.

Requesting Leave & Employee Certification

Employees must provide notice to their employers as practicable and as soon as feasible, but only when the need for leave is foreseeable. When an employee requests leave, an employer may request that the employee submit a self-certified statement asserting that leave was taken for a covered reason under the ordinance.

Employer Notice & Recordkeeping Requirements

According to the new ordinance, starting March 24, 2022, employers must provide employees with a notice of rights that explains:

  1. Employees are entitled to leave, the amount of leave, and the terms of its use guaranteed under the law;
  2. Retaliation against employees who request or use leave is prohibited and that each employee has the right to file a complaint or bring a civil action if leave required by the law is denied by the employer or the employee is retaliated against for requesting or taking leave.

Philadelphia’s Department of Labor published a model notice that satisfies the notice requirements which employers may utilize in communicating SPSL entitlement. Further, the model notice should be posted conspicuously in the workplace. If an employer does not maintain a physical workplace, or an employee teleworks or performs work through a web-based platform, the required notice must be provided to employees via electronic communication or a conspicuous posting in the web-based platform. Finally, the ordinance requires that employers must include the requisite notice of rights in any employee handbook.

As to record keeping, the ordinance states that for two years, employers must keep records documenting: hours worked; leave taken; and payment made for leave taken under SPSL.

Next Steps

To comply with this new Philadelphia law, employers and managers must now take action to update their internal policies and practices to ensure that employees are appropriately afforded paid time off, including SPSL, as required by law. This may also require that HR train managers to help identify, report and track COVID-related leaves. Employers must also provide all covered employees with a notice of their rights and benefits concerning SPSL.

Contact one of Saul Ewing Arnstein & Lehr’s employment law counsel if you have questions about SPSL, or other state or local sick or COVID leave laws, government orders or related employment issues.