- Applies to employers with at least 50 or more employees (though it is not currently clear if headcount is nationwide, or limited to Philadelphia);
- Provides a new bank of up to 80 hours of COVID-19 paid sick leave for 2021;
- Provided to employees who are unable to work or telework due to a COVID-19 qualifying reason (which now includes vaccination);
- Requires employers to provide a notice posting.
On March 29, 2021, the City of Philadelphia passed an updated version of the Philadelphia Public Health Emergency Leave (2021 PHEL) requiring up to 80 hours of paid leave benefits in 2021. The new 2021 PHEL amends and expands Philadelphia’s prior COVID-19 paid leave ordinance that expired on December 31, 2020.
Who is a Covered Employer?
2021 PHEL applies to employers with 50 or more employees. The law does not specify whether the threshold applies nationwide, in Pennsylvania, or within Philadelphia. Therefore, in the absence of further guidance the conservative approach is for employers with at least 1 employee working in Philadelphia to count employees nationwide for purposes of determining whether they are a Covered Employer.
Who is a Covered Employee?
A covered employee is an individual that has worked for ninety (90) or more days and:
- who works within Philadelphia; or
- who normally works for a given employer within the City of Philadelphia but is currently teleworking from any other location as a result of COVID-19; or
- who works for a given employer from multiple locations or from mobile locations, provided that 51% or more of such employee’s work time is spent within the City of Philadelphia.
What are the Qualifying Reasons for Leave?
A covered worker may use 2021 PHEL when unable to work for one or more of the following reasons:
- due to exposure to COVID-19 or because the employee is exhibiting symptoms that might jeopardize the health of others, regardless of whether the employee has been diagnosed with COVID-19;
- to care for a family member that is exhibiting symptoms that might jeopardize the health of others, regardless of whether the family member has been diagnosed with COVID-19;
- due to an employee’s need to: (i) self-isolate and care for oneself because the employee is diagnosed with COVID-19; (ii) self-isolate and care for oneself because the employee is experiencing symptoms of COVID-19; (iii) seek or obtain medical diagnosis, care, or treatment if experiencing symptoms of an illness related to COVID-19;
- to care for a family member who: (i) is self-isolating due to being diagnosed with COVID-19; (ii) is self-isolating due to experiencing symptoms of COVID-19; (iii) needs medical diagnosis, care, or treatment if experiencing symptoms of an illness related to COVID-19;
- to care for a child 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;
- an employee’s vaccination related to COVID-19; or
- an employee’s need to recover from any injury, disability, illness or condition related to such vaccination.
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. At the federal level, the current COVID-19 public health emergency declaration remains in effect until further notice. Employers/hiring entities should also be mindful of tracking any state or local declarations as a result of the ongoing pandemic.
Can an Employer Require Documentation from a Healthcare provider?
No. An employer can only request an employee submit a self-certified statement that leave was used according to the purposes listed above. A self-certification is not otherwise required.
What Amount of Leave Must be Provided?
The amounts required depend on a covered individual’s average hours worked as follows:
- Individuals who work 40 hours or more per week: 80 hours of paid leave;
- Individuals who work fewer than 40 hours per week: entitled to an amount of leave equal to the number of hours worked, on average, in a 14-day period.
- In the case of an employee whose schedule varies from week to week: entitled to the average number of daily hours that the employee was scheduled over the past 90 days of work, including hours for which the employee took leave of any type, multiplied by fourteen.
What is the Rate of Pay for 2021 PHEL?
2021 PHEL is paid at a worker’s regular rate of pay (and benefits), which may not be less than the state minimum wage.
Is an Employee Entitled to Reinstatement?
Any employee who takes 2021 PHEL is entitled, on return from such leave, to be restored by the employer to the position held when the leave began.
How does 2021 PHEL Interact with an Employer’s Existing Leave Policies?
In general, 2021 PHEL must be provided outside of, and prior to, using an eligible employee’s existing accrued paid time off banks. However, covered employers whose existing leave policies provides 160 hours or more of paid time off in 2021 that is not specifically designated as sick leave (but can be used for the same purposes under the same conditions as required by 2021 PHEL) are not required to provide additional paid sick leave.
How does 2021 PHEL Interact with Leave Entitlements under Existing Law?
Employers may substitute leave under the federal or state law related to COVID-19 for its obligations under 2021 PHEL to the extent they coincide and the relevant federal or state law permits such concurrent use of paid leave.
To the extent that an employer has adopted a policy on or after March 6, 2020 which provides its employees with additional paid time specifically for use during the COVID-19 pandemic in 2021, employers may substitute leave under such employer policy for the leave required under 2021 PHEL to the extent they coincide. Employers will be required to provide additional leave only to the extent that the requirements of 2021 PHEL exceed the requirements of the employer’s own specific COVID-19 pandemic paid leave policy otherwise available to a particular employee on or after January 1, 2021.
What are the Notice Posting Requirements?
Employers/hiring entities must notify workers within 15 days of the effective date of the law. The notice 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;
- provided in English and in any language spoken by at least 5% of the workforce;
Philadelphia’s Department of Labor has published a model notice poster to help employers meet this requirement.
What are the Recordkeeping Requirements?
Employers are required to document the amount of 2021 PHEL taken and must retain records for two years.
Are there other Prohibitions placed on Employers or Hiring Entities?
Employers cannot reduce the amount of any paid leave an employee could use or accrue under the employer’s existing policies as of March 1, 2021 and are prohibited from retaliation or discrimination against workers for using or attempting to exercise their rights under 2021 PHEL.
When Does 2021 PHEL Expire?
2021 PHEL will remain in effect until expiration of the statewide public health emergency declaration related to the COVID-19 pandemic.
Hiring entities are encouraged to review their existing policies and procedures in light of this extended Philadelphia paid sick leave coverage.
- Notice Poster
- Public Health Emergency Leave
- City of Philadelphia Webpage
- COVID-19 Pandemic Paid Sick Leave Resources
- Philadelphia Department of Health
- Pennsylvania Department of Health
- Sequoia Foreword: Philadelphia Extends COVID-19 Public Health Emergency Leave
- Sequoia Foreword: [Updated] Expansion of State/Local Sick Leave in Response to COVID-19
Disclaimer: This content is intended for informational purposes only and should not be construed as legal, medical or tax advice. It provides general information and is not intended to encompass all compliance and legal obligations that may be applicable. This information and any questions as to your specific circumstances should be reviewed with your respective legal counsel and/or tax advisor as we do not provide legal or tax advice. Please note that this information may be subject to change based on legislative changes. © 2021 Sequoia Benefits & Insurance Services, LLC. All Rights Reserved