Last month, the City of Philadelphia amended the Philadelphia Paid Sick Leave Law to include Public Health Emergency Leave. Briefly, the Philadelphia Paid Sick Leave Law requires covered employers to provide 1 hour of paid sick leave for every 40 hours worked by an employee in the City of Philadelphia. This blog focuses on the Public Health Emergency Leave (“PHEL”) Amendment.
It is imperative this the Paid Sick Leave Law and thereby the PHEL applies to companies performing work in Philadelphia. It follows that this law applies to businesses not located in Philadelphia.
Who is Covered?
PHEL applies to any individual who performs, “at least 40 hours of work in a year within the geographic boundaries of Philadelphia.” This applies not only to W-2 Employees, but also Independent Contractors (1099’s). The PHEL Amendment identifies individuals who are covered by this Ordinance which includes:
- Any individual who works in residence for the purposes of:
- caring for a child;
- serving as a companion or caretaker for a sick convalescing,
- serving as a companion or caretaker to an elderly person
- serving as a companion or caretaker to a person with a disability
- providing food
- providing butler service
- parking cars
- cleaning laundry
- personal organizing
- providing any other domestic service purpose.
- Any Individual providing services under the participant directed and agency homecare model;
- Any individual that works for a food delivery network company (including drivers). (NOTE: Food Delivery Network Company means, “an organization whether a corporation, partnership, sole proprietor, or other form, operating in the City of Philadelphia that offers prearranged delivery services for compensation using an online-enabled application or platform, such as an application dispatch system, to connect customers with workers for delivery from one or more of the following: (1) eating and drinking establishments, (2) food processing establishments, (3) grocery stores, or (4) any facility supplying groceries or prepared food and beverages for an online order.”)
- Any Individual who works for a Transportation Network Company (including drivers). (NOTE: Transportation Network Company means an organization whether a corporation, partnership, sole proprietor, or other form, licensed or required to be licensed operating in the City of Philadelphia, that offers prearranged transportation services for compensation using an online-enabled application or platform, such as an application dispatch system, to connect passengers with drivers.)
- Any Healthcare Professional who has the autonomy to (1) indicate when they are available for work and (2) who has no obligation to work when the individual does not indicate availability.
- Any employees who perform at least 40 hours of work annually in the City of Philadelphia.
What if an Individual Qualifies for FFCRA Leave? Can they get PHEL?
NOPE. It must be explained that the PHEL is available to employees who are NOT entitled to FFCRA Leave. As explained in my previous post, the Families First Coronavirus Response Act states that employer’s with less than 500 employees must provide Emergency Paid Sick Leave to their employees. If an employee is eligible for such leave, then they are not eligible for the PHEL. The Ordinance says, individuals are either covered by the FFCRA OR the PHEL, but not both.
However, the Amendment is worded to hold employers accountable. It explicitly states that if an employer is covered under the FFCRA, and the employer does not provide FFCRA leave, then those individuals are eligible for BOTH FFCRA and PHEL leave. It follows that businesses must be vigilant. If a company is covered under the FFCRA, it behooves them to abide by the federal law. If an employer does not abide by the federal law, they may end up paying double the paid leave.
What is the Leave?
The reasons for the leave mimic those of the FFCRA. The only difference is that the Ordinance does not reference COVID-19, but rather references a Public Health Emergency. Under the PHEL Amendment: Individuals can take the leave if they are
- Being subject to a federal, state, or local quarantine or isolation order related to the public health emergency’;
- Being advised by a health care 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 or isolation order related to the public health emergency;
- Caring for their child whose 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.
How Long Is PHEL Available?
The Ordinance is expansive and also confusing. The text states that individuals may use all or a portion of this leave at any time during the Public Health Emergency, and for one month following the conclusion of such emergency. Let’s break it down:
- What is a Public Health Emergency?
- The Ordinance 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…and ending on the date the last such [declaration/proclamation] ends…”
- On March 6, 2020, Governor Wolf signed a Proclamation of Disaster Emergency that applied to the entire state.
- On March 30, 2020, President Trump approved a Disaster Declaration for the Commonwealth of Pennsylvania.
- On June 11, 2020, Mayor Kenney signed a Declaration of Emergency for the City of Philadelphia.
- Which one Applies?
- According to the Ordinance, the Public Health Emergency will stand until one month after the last such declaration or proclamation ends, expires, or terminates. So individuals can take this leave while the Declarations are in place, and for one month thereafter.
- What About the December 31, 2020 Sunset?
- Now the ordinance also indicates that this law expires on December 31, 2020. We anticipate this ordinance to be extended.
How Much Pay?
Employees who work more than 40 hours a week and who are not entitled to FFCRA leave, shall receive the greater of 80 hours or the average hours worked in a 14 day period (with a maximum of 112 hours).
Employees who work less than 40 hours a week and are not entitled to FFCRA shall obtain the average wages of a 14 day work period.
NOTE: The Ordinance provides specific terms as to calculating the rate of pay. Businesses should consult with counsel to clarify.
What if an Individual Works for Many Different Entities?
In today’s world, many people work for different Hiring Entities. First, let’s talk about what a “Hiring Entity” is: Hiring Entity is defined as, “any individual, partnership, association, corporation, business trust or combination thereof, that pays a wage or wages for the services of a covered individual.”
It follows that if a Hiring Entity hires an individual (1099 or W-2), and that individual works for multiple employers, each Hiring Entity is responsible for providing the PHEL.
The Amendment explains that for individuals performing work for multiple Hiring Entities, the City, “shall establish a Centralized Portable Benefits System,” for calculating the PHEL…for, “collecting and distributing funds from such entities to pay for such [Leave].” So businesses must beware. Entities cannot “pass the buck” to another employers to provide the leave. Every hiring entity is on the hook.
So, Lyft cannot pass the buck to Uber and vice versa. Or Caviar cannot pass the buck to GrubHub. Apparently, the Centralized Portable Benefits Systems will solve any discrepancies and ensure that these entities contribute to pay for the leave. Businesses should contact counsel regarding this Portal.
How Does PHEL Relate to the Phila. Paid Sick Leave and the FFCRA?
The PHEL runs concurrently with any other state, or federal law. However, it does not seem to run concurrently with the Philadelphia Paid Sick Leave. In other words employees are eligible for both Philadelphia Paid Sick Leave (1 hour for every 40 hours worked capped at 40), AND PHEL (max 112 hours for the qualified reasons listed above).
The ordinance is explicit: All employers and Hiring Entities are required to either Post a Notice to all employers of the PHEL. If the employer is not conducting in-person business then this Notice must be emailed to individuals.
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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