Philadelphia Amends the Public Health Emergency Leave Ordinance: What the Amendment Means for Qualifying Employees and Covered Employers

On March 29, Philadelphia amended its Public Health Emergency Leave (PHEL) Ordinance requiring certain employers to immediately provide up to 80 hours of paid sick leave to qualifying employees in connection with specific COVID-19-related reasons. The amended Ordinance will remain in effect for the duration of the pandemic whereby qualifying employees may use the additional leave until one week after Governor Wolf terminates Pennsylvanian’s Statewide Proclamation of Disaster Emergency.

Does the New Ordinance Cover My Employer?

The amendment departs from the language of the original Ordinance in terms of which employers are covered. Where the original language applied to all employers, the new Ordinance only applies to employers with 50 or more employees.

Do I Qualify for Additional Leave?

In order to qualify for additional paid sick leave under the new ordinance, an employer must be subject to the ordinance as described above. Additionally, the employee must have worked for their employer for at least 90 days and meet any one of the following geographic conditions:

1. The employee works in Philadelphia;
2. In the event the employee is teleworking on account of COVID-19, the employee must ordinarily work in Philadelphia; or
3. The employee works from several locations but spends at least 51% of their time working in Philadelphia.

How Much Paid Leave Am I Entitled To?

The amount of leave an employee is entitled to under the PHEL is calculated by the number of hours the employee works in a given week.

1. Employees who work 40 hours or more per week are entitled to up to 80 hours.
2. Employees who work up to 40 hours per week are entitled to an amount of leave that equals the number of hours they are otherwise scheduled to work or actually work on average in a two-week period, whichever is greater.
3. If an employee’s hours vary, the employer must calculate their PHEL leave time by multiplying the average number of hours the employee was scheduled to work over the past 90 days, including hours for which the employee took leave of any type, by the number 14.
4. Employees who are exempt from overtime requirements under the federal Fair Labor Standards Act will be assumed to work 40 hours in each work week for purposes of PHEL unless their normal work week is less than 40 hours, in which case the amount of PHEL is based upon that normal work week.

When Can I Use My Additional Leave?

A qualifying employee may use PHEL when they are unable to work due to one or more of the following reasons:

1. The Employee is seeking or obtaining a medical diagnosis, care, or treatment because they are experiencing symptoms of an illness related to COVID-19.
2. The Employee is caring for a family member who is seeking or obtaining a medical diagnosis, care, or treatment because the family member is experiencing symptoms of an illness related to COVID-19.
3. A determination is made by a public official or public health authority, a healthcare provider, or an Employer that the Employee’s presence on the job or in the community would jeopardize the health of others because of the employee’s exposure to COVID-19 or because the employee is exhibiting symptoms that might jeopardize the health of others, regardless of whether the employee or family member has been diagnosed with COVID-19.
4. The Employee is caring for a family member of the employee due to a determination made by a public official or public health authority, a healthcare provider, or the family member’s employer that the presence of the family member on the job or in the community would jeopardize the health of others because of the family member’s exposure to COVID-19 or a determination by the family member’s employer that the family member is a danger to the health of others because they are exhibiting symptoms that might jeopardize the health of others, regardless of whether the family member has been diagnosed with COVID-19.
5. The Employee is caring for themselves or a family member who is self-isolating due to being diagnosed with COVID-19 or due to experiencing symptoms of COVID-19.
6. The Employee is caring for a child whose school or place of care has closed, or whose childcare provider is unavailable, because of COVID-19.
7. The Employee is obtaining or recovering from a COVID-19 vaccine.

How Will Taking Leave Affect My Job?

Any employee who takes leave under the amended Ordinance is entitled to be placed in the same position the employee held when the employee took PHEL. An employer cannot retaliate, in any way, against an employee who exercises PHEL in accordance with the amended Ordinance. Additionally, a covered employer may not reduce the amount of any leave, or accrual thereof, that an employee is normally entitled to under the Employer’s existing policies measured as of March 1.

I Am An Employer, What Do I Need To Do Now?

The Amended Ordinance became effective March 29. Accordingly, employers subject to the Ordinance should review their leave policy to ensure compliance or make temporary changes to the policy to bring it into compliance. Where additional leave is needed, employers are required to provide employees with notice of their eligibility to take PHEL by April 13. In some cases, an employer might be able to utilize existing paid leave benefits to comply with the new Ordinance if:

1. The existing policy already provides at least 160 hours of paid time off in 2021 that is not specifically designated as sick leave; and
2. The existing policy allows employees to use the leave for the same COVID-19-related purposes and circumstances provided in the amended Ordinance.

Finally, if an employer adopted a new policy on or after March 6, 2020, that grants employees additional paid leave for use in 2021 during the pandemic, the employer may substitute that leave for PHEL where the two overlap.

The attorneys in Clark Hill’s Labor & Employment Practice Group understand that this is a trying time for business around the country and are available to assist in navigating these ever-changing waters. For more information, please visit Clark Hill’s COVID-19 Resources webpage.