COVID-19 BREAKING NEWS: Public Health Emergency Leave Now Mandated for Nearly All Philadelphia Workers

On Friday, September 18, 2020, after months of suffering through the COVID-19 pandemic, Philadelphia amended its paid sick time law and established Public Health Emergency Leave (“PHEL”) for workers who may not be eligible for coverage under the federal Families First Coronavirus Response Act (the “FFCRA”). Philadelphia workers – both employees and independent contractors – are now guaranteed the right to take up to two weeks of leave from work for certain reasons during a public health emergency and be guaranteed pay for their time away from work and protection from retaliation for taking leave.

Who is Eligible for Public Health Emergency Leave?

This law provides leave to “covered individuals” – not just employees – who performed work within the geographic boundaries of Philadelphia for at least 40 hours in a year, for one or more hiring entities. In addition to employees, the term covered individuals is defined to include certain domestic workers, individuals providing services under the participant-directed and agency homecare model, individuals working for food delivery companies, drivers working for transportation network companies, as well as certain health care professionals.

The law defines a “hiring entity” to include employers as well as any individual, partnership, association, corporation, or business trust that pays a wage or wages for the services of a covered individual. For those hiring entities that have unionized workforces, the requirements to provide PHEL may be waived by a bona fide collective bargaining agreement (“CBA”) – so long as the waiver is clear and unmistakable in the CBA and the CBA provides a comparable paid leave benefit. Notably, all hiring entities are required to provide PHEL, even small employers with fewer than 10 employees.

What is Public Health Emergency Leave?

A covered individual may take PHEL at any time during a declared public health emergency when unable to work for one or more of the following reasons:

• The individual is subject to a quarantine or isolation order related to the public health emergency;
• The individual has been advised by a health care provider to self-quarantine due to concerns related to the public health emergency;
• The individual is experiencing symptoms related to the public health emergency and seeking a medical diagnosis;
• The induvial is caring for another who is subject to a quarantine or isolation order or has been advised to self-quarantine by a healthcare provider;
• The individual is caring for his or her child if the schools, daycares, or other childcare providers are closed or unavailable due to the public health emergency response; or
• The individual is 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.

Importantly, leave need not be provided where a covered individual is “reasonably able to perform work remotely” in light of the relevant circumstances. However, unlike the FFCRA – which cannot be taken intermittently without employer approval – PHEL can be taken in increments as small as one hour at a time.

Covered individuals seeking to take PHEL must provide the applicable hiring entity with notice of the need for leave as soon as practicable and feasible, where foreseeable. Hiring entities may not ask for extensive documentation but, rather, only a self-certified statement from the requesting individual to confirm that PHEL is being used for one of the approved purposes. 

How Much Public Health Emergency Leave is Available?

A hiring entity must make PHEL available to covered individuals whenever a public health emergency is declared by a federal, state or local official. Covered individuals who are entitled to leave under the FFCRA from a specific hiring entity are not entitled to PHEL from that hiring entity.

Covered individuals who work 40 hours or more per week for a single hiring entity receive 80 hours of PHEL or an amount of leave equal to their average hours worked over a 14-day period (up to a maximum of 112 hours). Covered individuals who work less than 40 hours per week for a single hiring entity receive an amount of leave equal to their average wages or other compensation worked over a 14-day period. The law provides for a specific calculation to determine the average hours, wages, or compensation in a 14-day period. Covered individuals who are classified as “exempt” from the overtime requirements of the Fair Labor Standards Act are assumed to work 40 hours in each workweek unless their normal workweek is less than 40 hours, in which case PHEL will be based on their normal workweek.

Currently, covered individuals who perform work for multiple hiring entities are expected to request PHEL from each hiring entity in the manner explained above. However, 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. 

Is Public Health Emergency Leave an Ongoing Benefit?

PHEL is not necessarily a one-time event. Rather, PHEL must be made available to covered individuals each time a public official declares a new public health emergency based on a different emergency health concern or declares a second public health emergency more than one month after the first public health emergency officially ended. That said, the law is set to expire effective December 31, 2020.

How Do Existing Employee Leave Benefits Impact the Requirement to Provide Public Health Emergency Leave?

One of the looming questions following the signing of this law is whether hiring entities that provide paid leave to employees must now provide additional banks of leave time to their employees to be used for one of the specific PHEL purposes. The law states that it does not require a hiring entity to change its existing policies or provide additional paid leave if the hiring entity’s existing policy provides an amount of paid sick leave that satisfies or exceeds the amount of PHEL required. However, it is unclear whether this applies to a hiring entity’s paid leave that is not designated specifically as “sick leave.” Many employers have paid time off policies that do not distinguish between leave taken as sick leave and leave taken as vacation or personal time.

Another open question is whether PHEL leave must be provided to covered individuals who may have already used all paid time off available to them before this law was enacted, or whether hiring entities will be afforded retroactive credit for paid leave time provided to individuals earlier in the pandemic. Hopefully, these and other questions will be answered by the forthcoming regulations.

Next Steps

The law requires hiring entities to provide covered individuals with notice of their rights to PHEL within 15 days of the law being enacted. While the City has yet to publish a formal notice to be used for this purpose, it is our understanding that one will be released shortly, along with regulations intended to provide clarifying guidance for employers and other hiring entities. Until such guidance is provided, employers and hiring entities should take immediate action to comply with the statutory text as it is written, grant any requests for leave that are clearly within the intent of the law, and consult with legal counsel on ensuring current policies are in compliance with the new law. Though the new law, like the FFCRA, is scheduled to expire at the end of 2020, employers and hiring entities should undertake compliance efforts with the expectation that both of these laws could be extended.

For Further Information: If you would like more information on appropriate steps to take and employment policies to implement in light of the ongoing COVID-19 pandemic, or if you would like assistance addressing other employment issues facing your organization, please contact Jennifer Platzkere Snyder, Claire Blewitt Ghormoz, or any member of Dilworth’s labor and employment team.