On July 17, 2019, the Pennsylvania Supreme Court held that the City of Pittsburgh’s Paid Sick Days Act (PSDA)—a 2015 ordinance that required businesses to provide paid sick leave to workers in the City—is valid. This decision overturned lower court decisions going back to 2015 that held the City exceeded its municipal authority by enacting the PSDA because the ordinance would inappropriately regulate businesses within its boundaries. The high court ruled that while the PSDA did burden businesses, its primary purpose was to regulate the health and safety of its citizens, which falls within the City’s traditional police powers. On December 16, 2019, the City’s Office of Equity issued its official guidelines for administering the PSDA, which will take effect on March 15, 2020.
This alert highlights the most salient features of the PSDA and the guidelines.
Key Provisions of PSDA:
Covered Employers: A covered employee is any employer doing business within the geographical City boundaries and employing one or more individuals. The guidelines clarify that if an employer is located outside the City but has employees that perform work in the City, the employees are entitled to sick leave once they perform at least 35 hours of work within the calendar year.
Covered Employees: All full and part-time employees working within the City are covered employees; this does not include seasonal employees and independent contractors.
Accruing Sick Time: Employees accrue one hour of paid sick leave time for every 35 hours worked in Pittsburgh. Exempt employees are presumed to work 40 hours per week for sick-time accrual. If their normal workweek is less than 40 hours, accrual rate is based on their normal workweek.
For employers with 15 or more employees: Employees can accrue up to 40 hours of paid sick time leave per calendar year (which is any regular 12-month period that is communicated to employees).
For employers with less than 15 employees: Employees can accrue up to 24 hours of unpaid sick time leave the first calendar year after the PSDA becomes effective. Subsequently, these employees can accrue up to 24 hours of paid leave per year.
Employers either can frontload the accrual amount or allow employees to roll over accrued, unused sick time from year to year, capped at 40 or 24 hours in a calendar year. If an employer has a paid leave policy that is more generous than the PSDA’s requirement, which can be used for the same purposes, it does not need to offer additional paid time off. However, this means that the policy must provide the employees with the same number of paid days off, earned at the same rate and to be used in the same manner as the PSDA. Employers do not have to pay out accrued, unused sick time at the end of employment.
Employer Notification Requirements: Employers must notify employees of their rights under the PSDA, including the amount of available leave time and the right to be free of retaliation for requesting leave, using leave or filing a complaint about leave. Employers also must post notices provided by the Office of the Controller regarding these rights. Two such notices were released by the Office in 2015, but it is uncertain whether these will be revised or maintained.
Employee Notification Requirements: Generally, paid sick leave must be provided upon an employee’s oral request, which should include the anticipated length of leave, if possible. Employees must follow reasonable policies relating to timing and circumstances of requests for use of sick time, such as providing advance notice of up to seven days for foreseeable paid sick time use and making a “good faith effort” to provide notice as soon as possible for unforeseeable events.
Employers can require that employees submit documentation of the reason for using sick time only if the employee uses three or more consecutive days of leave. Employers cannot require that the documentation specify the specific nature of illness. While employers can discipline employees for failure to comply with notification requirements, they may not prevent the employees from using the accrued leave.
Using Sick Time: Employees can use paid sick time for their own or for their family members’ illnesses, injuries, or medical treatment, including preventive and mental health care.
Employees start accruing sick time on the PSDA’s effective date (March 15, 2020). Employees hired after this date begin to accrue sick time on the first day of employment and can begin to use leave after 90 days. Sick time can be taken in the smallest increments that the employer uses for absences or in one-hour increments. Sick-time pay is equal to the employee’s rate of pay, and with the same benefits, e.g. health care benefits, that the employee would have earned when the sick time is used.
Recordkeeping Requirements: Employers must retain records showing hours worked and sick time taken by employees for a period of at least two years. Failure to do so may result in fines and a rebuttable presumption that PSDA was not followed.
Penalties for Noncompliance: Employers may not interfere with an employee’s rights under the PSDA, including the right to use accrued sick leave and be free of discrimination, retaliation, or discipline for appropriately using the leave. The PSDA allows employees to file complaints with the Office of the City Controller or a court within six months of when an employee knew or should have known of a violation under the PSDA. The Office may impose penalties and fines, and provide relief including but not limited to wages, benefits, and reinstatement.
If you are a covered employer, you should prepare to update your policies and handbooks to reflect this law. Ballard Spahr’s Labor and Employment Group has extensive experience counseling employers on wage and hour issues and compliance with federal, state, and local laws and is here to help.
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This alert is a periodic publication of Ballard Spahr LLP and is intended to notify recipients of new developments in the law. It should not be construed as legal advice or legal opinion on any specific facts or circumstances. The contents are intended for general informational purposes only, and you are urged to consult your own attorney concerning your situation and specific legal questions you have.