Philadelphia Extends Paid COVID-19 Leave for Workers

Philadelphia enacted a new version of its Public Health Emergency Leave (PHEL) Ordinance on March 29. The new ordinance amends the emergency regulations the city enacted in November 2020 to expand paid sick leave access for workers during the COVID-19 pandemic. Under the new ordinance, which will remain in effect for the duration of the pandemic, covered employers must immediately provide up to 80 hours of paid sick leave to qualifying employees for certain COVID-19-related reasons. 

Covered Businesses and Workers

The new ordinance applies to employers with 50 or more employees, whereas the previous version of the ordinance applied to all employers, regardless of size. Employees qualify for PHEL if they have worked for their employer for at least 90 days and they meet any one of the following criteria:

• They work in Philadelphia
• They ordinarily work in Philadelphia but are currently teleworking from any other location as a result of the pandemic
• They work from multiple locations or mobile locations, but spend at least 51% of their working time in Philadelphia

Amount of Leave

Under the new ordinance, employees who work 40 hours or more per week are entitled to up to 80 hours of PHEL. Employees who work up to 40 hours per week are entitled to an amount of PHEL 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. 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 14.

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.

Permissible Uses

An employee may use PHEL when they are unable to work for any of the following reasons:

• They are seeking or obtaining a medical diagnosis, care, or treatment because they are experiencing symptoms of an illness related to COVID-19
• They are 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
• There has been a determination 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
• They are caring for a family member of the employee due to a determination 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
• They are 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
• They are caring for a child whose school or place of care has closed, or whose childcare provider is unavailable, because of COVID-19
• They are obtaining or recovering from a COVID-19 vaccine

Employees may use PHEL until one week after Governor Tom Wolf ends Pennsylvania’s Statewide Proclamation of Disaster Emergency.

Right to Return to Work and Non-Retaliation

Any employee who takes PHEL is entitled, on return from such leave, to be restored by the employer to the position held when such leave commenced.

Employers cannot retaliate against an employee who takes PHEL. No employer required to provide PHEL may reduce the amount of any paid leave an employee entitled to PHEL was otherwise entitled to use or accrue under such employer’s existing policies as of March 1, 2021.

Practical Considerations for Employers

Philadelphia’s amended Public Health Emergency Leave Ordinance took effect on March 29, 2021; therefore, employers should determine whether the new ordinance requires them to take any immediate action. For example, covered employers are required to provide employees with notice of their eligibility for PHEL within 15 days of the March 29 enactment date.

As under the previous ordinance, a covered employer might be able to use existing paid leave benefits to comply with the new ordinance. An employer is not required to provide additional paid leave if its paid leave policy

• already provides at least 160 hours of paid time off in 2021 that is not specifically designated as sick leave; and
• allows employees to use the leave for the same purposes and under the same circumstances set forth in the new ordinance.

In addition, if an employer adopted a policy on or after March 6, 2020 that provides employees with additional paid time specifically for use in 2021 during the pandemic, the employer may substitute that leave for the PHEL required under the new ordinance, to the extent they coincide.

How We Can Help

Morgan Lewis is tracking all COVID-19-related developments on a state and local level, including the jurisdictions issuing restrictions on employer operations and those providing guidance on the use of sick leave to help cover absences related to COVID-19. If you have any questions, would like to discuss which jurisdictions have developed or created new laws as a result of the COVID-19 pandemic, or need additional information on the contents of this LawFlash, please contact any of the following Morgan Lewis lawyers:

Philadelphia
A. Klair Fitzpatrick
Anne E. Martinez