Legal Alert

Philadelphia Workers Now Entitled to Public Health Emergency Leave

by the Labor and Employment Group
September 25, 2020

Philadelphia has amended its Promoting Health Families and Workplaces Ordinance, which already provides up to 40 hours of paid sick leave a year to eligible employees, to provide two weeks of paid emergency public health leave (PHEL) to Philadelphia workers during declared public health emergencies. The PHEL will expire on December 31, 2020.

The applicability of PHEL is very broad. It covers not only employees, but also many independent contractors, including those in certain industries. In addition, unlike the existing paid sick leave, it applies to employees covered by collective bargaining agreements unless there is an explicit waiver. It also applies regardless of the size of the employer.

PHEL generally provides leave under the same circumstances as federal emergency paid sick leave under the Families First Coronavirus Response Act (FFCRA), but there are important differences. First, PHEL applies to workers who are not eligible for benefits under the FFCRA.  Second, there are no exemptions for health care workers. Third, the amount of leave is different. Fourth, employers who already provide an equivalent amount of paid sick leave that can be used for the same purposes under the same conditions do not have to provide additional leave under PHEL. Finally, companies cannot get a payroll tax credit for PHEL leave the way they do for leave under the FFCRA, imposing a greater financial burden on businesses. 

The ordinance has no effective date, which appears to be an oversight. It also appears to apply to existing bargaining agreements, raising potential contract impairment issues. To be safe, employers should interpret the ordinance as going into effect immediately. Businesses exempt from the FFCRA will now have to gear up quickly to prepare for requests for these benefits and determine how they interact with their existing leave benefits.

What Qualifies as a Public Health Emergency: A public health emergency means a declared or proclaimed emergency made by a federal, state, or local official related to a public health threat, risk, disaster, or emergency affecting Philadelphia. The duration of the public health emergency is defined by the start and end dates of the declaration or proclamation.

Covered Businesses and Workers: The law provides leave to “covered individuals” who perform work in Philadelphia for at least 40 hours a year for one or more “hiring entities.” Covered individuals include employees, domestic workers, individuals providing services under the participant-directed and agency homecare model, individuals working for food delivery companies, individuals working for transportation network companies, and certain health care professionals. It does not matter if the individual is treated as an independent contractor by the hiring entity.

A “hiring entity” means any employer, individual, partnership, association, corporation, business trust, or combination thereof that pays a wage for the services of a covered individual, whether compensation is paid directly or indirectly.

Notably, the law presumes that workers are employees unless the hiring entity can show:

  • The individual is free from the control and direction of the hiring entity in connection with the performance of the labor or services, both under the contract for the performance of the work and in fact;
  • The individual performs labor or services that are outside the usual course of the hiring entity’s business; and
  • The individual is customarily engaged in an independently established trade, occupation, profession or business of the same nature as that involved in the labor or services performed.

Leave Entitlement: On the date a public health emergency is declared, or on the date of hire for employees hired while the declared emergency is in effect, a hiring entity must provide paid leave to covered individuals who are not otherwise entitled to leave under the FFCRA.

Covered individuals working 40 hours or more per week are entitled to 80 hours or an amount of leave equal to their average hours worked over a 14-day period, whichever is greater, capped at 112 hours. Employees classified as exempt under the Fair Labor Standards Act are presumed to work 40 hours per week, unless their normal workweek is less than 40 hours, in which case the amount of leave is based on their normal workweek.

Covered individuals working fewer than 40 hours are entitled to an amount of leave equal to the amount of hours they work on average in a 14-day period. For covered individuals whose hours vary from week to week, a hiring entity must use the following calculation to determine the individual’s average hours over a 14-day period:

  1. A number equal to the average hours that the covered individual received per day over the six-month period ending on the date the public health emergency was declared, multiplied by 14, including wages or compensation for any hours for which the covered individual took leave of any type.
  2. If the covered individual did not work over such period, the reasonable expectation at the time of hiring of the average hours they would normally receive within a typical 14-day period.

Note that for a public health emergency which is ongoing when the PHEL becomes effective, the public health emergency is considered declared on the effective date of the PHEL. Accordingly, for the COVID-19 public health emergency, the look-back period for workers with variable schedules is the six-month period ending September 17, 2020 (if the law is treated as being effective immediately).

For covered individuals working for multiple hiring entities, the law directs the Mayor’s Office of Labor to establish a centralized portable benefits system for calculating PHEL attributed to each hiring entity, and then collecting and distributing PHEL funds to a covered individual. Until that system is established, individuals are entitled to leave from each hiring entity for whom they work during a declared public health emergency pursuant to forthcoming regulations.

Permitted Uses: Covered individuals may use PHEL when unable to attend work for one or more of the following reasons, which mirror the reasons for leave under the FFCRA:

(a) being subject to a Federal, State, or local quarantine or isolation order related to the public health emergency;

(b) being advised by a health care provider to self-quarantine due to concerns related to the public health emergency;

(c) experiencing symptoms related to the public health emergency and seeking a medical diagnosis;

(d) caring for an individual who is subject to an order as described in subsection (a) or has been advised as described in subsection (b);

(e) caring for a child of such covered individual if the school or place of care of the child has been closed, or the childcare provider of such child is unavailable, due to precautions taken in accordance with the public health emergency response;

(f) experiencing any other substantially similar condition specified by the United States Secretary of Health and Human Services in consultation with the United States Secretary of the Treasury and the United States Secretary of Labor (which, to date, has not been specified).

Covered individuals may use all or a portion of PHEL at any time during a public health emergency and for one month following the conclusion of the emergency. Further, the law provides that employees may use PHEL if they are laid off as the result of a public health emergency. Employees who choose not to use PHEL leave upon a layoff related to a public health emergency, and who are rehired within six months, are entitled to the same amount of PHEL upon rehire that they were entitled to on the day they were laid off. Except for a layoff due to a public health emergency, PHEL need not be cashed out upon termination.

Covered individuals are entitled to PHEL each time a new public emergency is declared, or where a second public health emergency is declared for the same original emergency more than a month after the first declared emergency ended.

Rate of Pay: PHEL is paid at a worker’s regular rate of pay, and with the same benefits, including health care benefits, as the worker normally earns, which may not be less than the state minimum wage. For tipped employees, hiring entities are to follow the standards set forth in the regulations implementing Philadelphia’s Fair Workweek ordinance.

Requesting Leave: The public statement of a public official constitutes reasonable documentation for the use of PHEL. Covered individuals are not required to provide documentation from a public official. Covered individuals must provide notice of their need for leave as soon as practicable if the need for leave is foreseeable. Hiring entities may request a covered individual submit a self-certified statement asserting that the leave was used in accordance with the provisions of the PHEL.

A hiring entity may not require a covered individual to search for or find a replacement to cover the hours for which they are seeking to use PHEL.

Impact on Existing Leave Policies and Obligations: Hiring entities may require that PHEL run concurrently with leave mandated by other federal or state laws. Further, to the extent that hiring entities have existing leave policies which provide as much as, or more than, the amount of leave available under the PHEL for the same reasons and under the same conditions available under the PHEL, they do not need to grant covered individuals additional leave under the PHEL.   

Required Notice to Covered Individuals: Hiring entities must notify workers within 15 days of the effective date (by October 3, 2020, if the law is treated as being effective immediately) of their rights under the new law. Postings must in English and in any language spoken by at least 5 percent of the workforce. The posting must be displayed in a conspicuous location, or for virtual workforces, the posting may be sent through electronic communication or posted on a conspicuous location on a web-based platform. The city has not yet published the required notice.

Prohibition Against Interference and Retaliation: A hiring entity may not interfere with, restrain, or deny the exercise of, or the attempt to exercise, any right under the law. Nor can a hiring entity take retaliatory personnel actions or discriminate against an individual for exercising protected rights, including, but not limited to, the right to use PHEL, the right to file a complaint or inform any person about any hiring entity’s alleged violation of the law; the right to cooperate with the Mayor’s Office in an investigations of alleged violations; and the right to inform any person of his or her potential rights under the law.

Copyright © 2020 by Ballard Spahr LLP.
(No claim to original U.S. government material.)

All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, including electronic, mechanical, photocopying, recording, or otherwise, without prior written permission of the author and publisher.

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.

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