On June 25, 2020, Mayor Kenney signed the “Employee Protections in Connection with COVID-19 Emergency Health Order” into law. Philadelphia is the first U.S. City to pass such a bill. This bill codifies employers’ duty to employees through this Pandemic. Below is a summary of the bill, and the requirements it puts on employers:
New Code Creates Statutory Basis for Employer Duty
The new law forms a statutory basis for an employer’s duty to their employees. The Code Amendment codifies the requirement that all employers comply with Public Health Orders:
Employers shall comply with all applicable requirements of COVID-19 public health orders addressing safe workplace practices to mitigate the risks associated with the 2019 novel coronavirus (“COVID-19”).
The bill defines a “Public Health Order” as an “order or regulation issued by the Pennsylvania Department of Health or the Philadelphia Department of Public Health” related to COVID.
To date, there have been lawsuits filed against employers based in negligence. In order to bring a negligence cause of action, a plaintiff must show that the employer had a (1) duty to the employee, (2) there was a breach of that duty, (3) that breach was the proximate cause of (4) damages.
Prior to the passing of this bill, the Orders from the Governor and the PA Secretary of Health along with Philadelphia Orders collectively documented the employer’s duty to their employees. This Code Amendment now bolsters the employers’ duty. There is now a statutory basis for an employer’s negligence.
Check out my post on the Green Phase Order and the April 15, 2020 PA Secretary of Health Order for information on the Orders that apply to businesses in the Green Phase.
Prohibition from Taking Adverse Employment Actions Against Employees who Refuse to Work
Section 9-5003 of the Code prohibits employers from taking any Adverse Employment Actions against an employee for refusing to work in unsafe conditions. However, the Code explains that employees can refuse to work only if the employee:
- Reasonably believes that the employer is operating in violation of a COVID-19 public health order in a manner that has created the unsafe condition; and
- the employee has notified the employer of the unsafe condition.
Section 9-5003 goes further and states that an employee may not refuse to work if the employer provides:
- A reasonable alternative work assignment that does not expose the employee to the unsafe condition; or
- Upon inspection by the Philadelphia or Pennsylvania Department of Health the business proves it is compliant with all public health orders addressing safe workplace practices.
NOTE: The Code defines an “Adverse Employment Action” as reduction in pay, atypical adverse change in working hours, termination, refusal to employ, harassment, or threats pertaining to an individual’s perceived immigration status.
The first line of defense against exposure to liability under this section is to memorialize and implement a COVID-19 Policy that is compliant with the applicable State and City Orders. The Policy should be a resource for employees and should include at a minimum:
- Cleaning Protocol
- Protocol when there has been an exposure to the business
- Employee’s duties to clean and sanitize
The COVID Policy will be Exhibit A for employers in defending lawsuits based in negligence and thereby this Code. In addition to the COVID Policy, the following materials are helpful to educate employees and protect the business:
- Conduct a virtual training on the COVID Policy.
- Have employees certify that they attended and completed the training.
- Employee Certification
- Employees should take their time and review the COVID Policy.
- Have employees certify that they read and reviewed the COVID Policy.
- PPE Certification
- Employers are required to provide employees masks, and also make available cleaning supplies.
- Employees should execute a separate certification that they have (1) received a face covering.
- Employee Self Screening
- In addition to protocols set up in at the workplace, have employees execute a Certification that they will not enter the office if they have a temperature over 100.4 degrees or any COVID-19 symptoms.
Even more, employers should safe all evidence of every single step taken to ensure a safe working environment. All receipts for cleaning supplies, cleaning crews and the like should be saved as such information/material will be essential in defending against any negligence claims.
Employers are prohibited from taking an adverse employment action against any employee for making a “Protected Disclosure.” The Code defines “Protected Disclosure” as:
A good faith communication, including a communication based on, or when carry out, job duties, that discloses or demonstrates an intention to disclose information that may evidence a violation of a COVID-19 public health order that may significantly threaten the health or safety of employees or the public, if the disclosure or intention to disclose was made for the purpose of remedying such violation.
This section simply means that employers cannot retaliation against any employees who reports or threatens to report any violations of public health orders to authorities. This is essentially a non-retaliation provision. It follows that all COVID Policies should include express non-retaliation language.
Presumption of Retaliation
The Code includes that there is a rebuttable presumption of retaliation if an Employer takes an adverse employment action against a person within 90 days of the employee’s exercise of rights protected in the Code. In other words, if an employer terminates, demotes, reduces hours within 90 days after an employee (1) reports/threatens to report an alleged COVID violation, or (2) refuses to work because they feel unsafe, then there is a presumption that the adverse employment action was retaliatory.
This presumption can be rebutted with evidence from the employer that the adverse action was taken for a permissible purpose.
It follows that employers must continue to document employee performance. Even more, the COVID Policies should include a provision that clearly states that any violations of the COVID Policy can result in discipline up to and including termination. It is good practice for employers to document all employee violations of the policy. Therefore, if an employee does not abide by the policy (ie- does not wear a face mask, or fails to clean their workspace etc.), then the employer will have documented reasons for any adverse employment action.
Process to File a Complaint
Aggrieved employees must first file a Complaint with the Department of Labor (“Department”). The Department will then assess and certify whether there is reasonable cause for an employee to (1) bring an action in court against the employer.
Section 9-5006(2)(a) explains that should a matter get through the administrative process, an employee may seek (1) reinstatement, (2) back pay and (3) other compensatory damages. Even more, the section allows for an employee to seek civil penalties on behalf of the city each day the violation occurs.
Retaliation offenses are classified as a Class III offense that are punishable by a maximum of a $2,000 fine. All other violations under this section carry a maximum penalty/fine of $1,000.
It is prudent for employers to consult with counsel to ensure that they have COVID Policies in place to protect their employees and their business.
ABOUT SUSIE CIRILLI
Susie M. Cirilli is a Labor & Employment attorney that assists clients with issues involving the ADA, FMLA, and Title VII claims. Susie litigates on matters related to hostile work environment, discrimination based on sex, sexual orientation, pregnancy, race and disability. Susie has experience representing employers in fact-finding conferences and mediations before the PHRC and the EEOC. Susie’s practice also consists of counseling and advising clients on employment matters. She often advises employers on day to day employment matters and assists her clients on employee issues such as hiring and terminations, which includes drafting and negotiating separation agreements. Susie has experience drafting and revising employment agreements, employee handbooks, non-compete and non-solicitation agreements. Susie is admitted in the Middle District and Eastern District of Pennsylvania. She is also admitted in the Federal Court for the District of New Jersey.
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