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.
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:
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.
An employee may use PHEL when they are unable to work for any of the following reasons:
Employees may use PHEL until one week after Governor Tom Wolf ends Pennsylvania’s Statewide Proclamation of Disaster Emergency.
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.
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
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.
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:
A. Klair Fitzpatrick
Anne E. Martinez