Legal Blog

If an Employee in Philly used FFCRA Leave Earlier this Year…Can They take City Public Health Emergency Leave?

In this nutty time, there are seemingly laws and ordinances and amendments and orders being passed every single day. One scenario that could very well arise involves the FFCRA Paid Sick Leave, and the Philadelphia Public Health Emergency Leave (PHEL). The below scenario may come across some employers’ desk, and here is some helpful insight:

…So what if an Employee used FFCRA Leave earlier in the year, and then in October, needs to take Paid Sick Leave Again? Can they take PHEL?

Briefly, the FFCRA Paid Sick Leave provides two weeks of paid leave for individuals who cannot work (or telework) due to a COVID-19 related reason, whether it be that they themselves are ill, a family member is ill, or a school/place of care is closed.

The PHEL leave applies to individuals who work 40 hours annually in the City of Philadelphia. The Ordinance is clear that this leave is available only to individuals who are not entitled to FFCRA Leave.

However, what happens when a PHEL covered individual took FFCRA Paid Sick Leave earlier this year due to themselves being sick? What if that individual took FFCRA Paid Sick Leave in June, prior to when PHEL was passed? What happens if that same individual exhibits symptoms of COVID again and requires Paid leave now? Since they cannot take FFCRA Leave…can they take leave under PHEL? Since technically they are not “entitled to FFCRA Leave” does that render them eligible for PHEL leave?

While plaintiff’s attorneys might try to make an argument, then answer is a straight up NO, and here is why:

ORDINANCE IS CLEAR THAT IF AN EMPLOYEE TAKES FFCRA LEAVE, THEN THEY CANNOT TAKE PHEL LEAVE:

Section 9-4116(4)(e) explicitly states that a covered individual is eligible for BOTH FFCRA and PHEL leave only when the following requirements are met:

  • the covered individual is or was entitled to FFCRA from that specific hiring entity at any time; and
  • the hiring entity did not, at any point, exercise an option not to provide leave under the FFCRA to such covered individual.

This means that if an employee took FFCRA leave, they cannot then take PHEL leave. The employee cannot double dip.

Knowing the ins and outs of these laws can help businesses be agile and nimble as they operate during this time.

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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