If you are an employer in Philadelphia, you’re likely aware of both Philadelphia’s paid sick leave law and the COVID-19 emergency leave, which expired on December 31, 2021. On March 18, 2021, City Council passed the final emergency sick leave bill to extend and replace the 2020 ordinance. Below is a summary of the key provisions:
Is Your Business Covered?
Under the ordinance, covered employers include any individual, partnership, association, corporation, business trust, or any person or entity acting, directly or indirectly, in an employer’s interest in relation to any employee. However, your business is not covered if you have less than fifty (50) employees.
Which of Your Employees Are Covered?
Employees who have worked for your business for 90 or more days, who: (1) work within Philadelphia (2) normally work for an employer within Philadelphia, but are currently working remotely or (3) who works for an employer at multiple locations if 51% or more of their time is spent within Philadelphia.
When Do You Have to Provide Paid COVID-19 Sick Leave?
Under Philadelphia’s ordinance, an employer must provide paid leave if:
- Quarantine: A public official or health authority or health care provider determines that the employee’s presence at work would jeopardize the health of others because that employee has been exposed to COVID-19 or is exhibiting such symptoms, regardless of whether the employee has received a diagnosis;
- Quarantined Family Care: An employee needs to care for a family member due to the above-covered determination;
- Diagnosis or Symptoms: An employee needs to self-isolate because they are exhibiting COVID-19 symptoms, have been diagnosed with the virus, or are receiving medical care due to COVID-19 symptoms.
- Diagnosed or Symptomatic Family: An employee needs to care for a family member due to the above-covered diagnosis or symptoms.
- Vaccine: An employee is obtaining a COVID-19 vaccine, or is recovering from a reaction to the vaccine; or
- Child Care: An employee cares for a child whose school or place of care is closed or whose childcare provider is unavailable due to COVID-19.
How Much Leave Do You Have to Provide?
An employer must provide employees who work 40+ hours at least 80 hours of paid sick leave and an employee working less than 40 hours, an amount equal to when the employee is otherwise scheduled to work or actually works in a 14-day period. If the employee’s schedule fluctuates, use the average number of daily hours the employee was scheduled over the past 90 days, multiplied by 14.
Also, any other paid sick leave provided to the employee before the ordinance’s effective date may not be used to offset these requirements. Employees essentially get a new bucket of paid sick leave.
What about the Philadelphia Paid Sick Leave?
As we know, Philadelphia employers must provide Philadelphia Paid Sick Leave, which affords employees 40 hours of paid leave annually. Employers must beware that this Philadelphia COVID Leave is in addition to the Philadelphia Paid Sick Leave. In other words, this COVID leave does not run concurrently with the Philadelphia Paid Sick Leave.
It follows that Philadelphia employees are eligible for 40 hours of Philadelphia Paid Sick Leave and the Philadelphia COVID Paid Leave. In some instances, this may be 120 hours of paid leave.
What About the FFCRA Leave?
The American Rescue Plan made the FFCRA optional for employers through September 30, 2021. Under the American Rescue Plan, employers can provide such leave to employees and receive a tax credit.
The Philadelphia COVID Leave is mandatory and effective as of March 29, 2021. The Code is clear that when an employer provides paid leave under the FFCRA, it will run concurrently with the Philadelphia COVID Leave.
It behooves employers to opt-in for the FFCRA until September 30 so that any paid leave provided during this time will be eligible for a tax credit.
Generous Employer Exception
The Leave Law provides an exception for “Generous Employers.” If an employer provides 160 hours or more of paid time off in 2021, even if it is not designated as sick leave, that business does not need to provide more leave.
With that being said, prudent employers will opt-in for the FFCRA to obtain the tax credit. Employers should consult with counsel regarding the proper documentation needed under the FFCRA.
The Code is clear; Philadelphia employers must provide notice to all employees using the City Notice Form. This notice can be provided at the physical workplace, or in the event, the employee is teleworking, the notice must be sent via e-mail or a “conscious posting in the web-based platform.”
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Ms. Batista is an employment & labor attorney who provides businesses with advice and risk mitigation strategies, and zealous representation in litigation. She frequently represents businesses in the hospitality, financial services, automotive dealership, engineering and architecture and healthcare industries. Specifically, Ms. Batista successfully defends employers against claims of discrimination and harassment, retaliation, wrongful termination, and wage and hour violations. Ms. Batista also commonly represents her clients in actions involving employee mobility and trade secret theft. Employment and labor law is ever-changing. Employers need to feel secure in how they manage their employees so they can focus on their business. Ms. Batista affords her clients that security.
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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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