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23 Mar

March 2022: Philadelphia’s COVID-19 Paid Leave is Now in Effect

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Update Applicable to:
All employers with 25 or more employees in the city of Philadelphia, Pennsylvania

What happened?
On March 10, 2022, Philadelphia Mayor Kenney signed into law the third iteration of the Public Health Emergency Leave (PHEL) law, which goes into effect immediately and will sunset on December 23, 2023.

What are the details?
Eligibility

The third iteration of Philadelphia’s COVID-19 paid leave mandate applies to employers who have 25 or more employees and has a broad standard for employee eligibility, covering those who work for a covered employer and either:

  • currently works in the city,
  • normally works in the city but is currently teleworking due to COVID-19, or
  • works from multiple locations and spends a majority of their work time in the city.

Using Existing Paid Leave Benefits

In general, COVID-19 leave benefits are in addition to all other paid leave benefits an employer provides, and an employer cannot reduce the amount of COVID-19 leave it must provide by the amount of paid leave an employee previously received. Under limited circumstances, however, employers can use pre-existing benefits to satisfy COVID-19 eave requirements in whole or part:

  • Teleworkers: When employees complete the majority of their work through telework, employers need not change existing policies or provide additional paid leave if existing policies provide teleworking employees with at least 80 hours of paid leave in 2022, and employees can use such paid leave for the same purposes and under all of the same conditions as set forth under the ordinance.
  • Generous Paid Leave Policies: An employer need not change an existing leave policy or provide additional paid leave to employees if its policy provides at least 120 hours of paid time off in 2022 whether such leave is specifically designated as sick leave, if employees can use such leave for the same purposes and under all of the same conditions as the ordinance requires (in 2021, it was 160 hours). Additionally, a provision that differs from the 2021 ordinance provides that, for employers that operate on a 7.5-hour workday and consider an employee working 37.5 hours a week to be a full-time employee, the amount of leave required to qualify for this exemption is 112.5 hours.
  • COVID-19 Paid Leave Policies: If an employer adopted a policy that provides employees additional paid time off specifically for use during COVID-19, it may substitute leave under that policy for COVID-19 leave to the extent they coincide. Employers must provide additional COVID-19 leave only to the extent that the ordinance’s requirements exceed their COVID-19 paid leave policy’s requirements. Unlike the 2021 law, there is no express requirement that the policy had to be adopted on or after March 6, 2020, but it is unlikely many employers adopted COVID-19 leave policies before that date.

Amount of Leave

Employers must provide – rather than have employees accrue – the following amounts of paid COVID-19 leave, which is less than what they had to provide under the 2021 ordinance:

  • Employees who work 40 or more hours per week receive at least 40 hours, unless their employer provides a greater amount (in 2021, it was 80 hours).
  • Employees who work fewer than 40 hours per week receive an amount equal to the amount of time they are scheduled to work or actually work on average in a seven-day period, whichever is greater, unless the employer provides a greater amount.
  • Employees whose weekly schedule varies receive 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 seven.

Covered Uses

The law’s covered uses provision is nearly identical to that of the 2021 law, except for a few minor changes. Leave is available for immediate use when employees are unable to work due to one or more of the following reasons:

  • care for the employee’s own self or a family member who has COVID-19 symptoms or is self-isolating due to COVID-19 exposure;
  • childcare or school closure; and
  • receiving a COVID-19 vaccine (including booster) or recovering from COVID-19 vaccine side effects.

Employees can use COVID-19 leave in the smaller of hourly increments or the smallest increment the employer’s payroll system uses to account for absences or use of other time. An employer cannot require an employee to use other paid sick leave available to the employee, e.g., pre-COVID-19 statutory Philadelphia paid sick leave, before the employee is eligible to use COVID-19 leave unless state or federal law requires otherwise.

Employer Notice and Recordkeeping Requirements:

Employers must provide employees with a notice of their rights under the COVID-19 leave mandate within 15 days of the mandate becoming law.  Although not specified, if the 15 days are measured as calendar days, covered employers will need to provide their employees with a copy of the notice by March 24, 2022.

The mandate’s model notice has been posted and can be found here.

Prohibitions

The ordinance includes numerous prohibitions, expressly or by incorporating standards in the pre-COVID Philadelphia paid sick leave ordinance. For example, as a condition of providing COVID-19 leave, employers cannot require employees to search for or find a replacement to cover the hours during which they are using leave. Employers cannot reduce the amount of any paid leave an employee could use or accrue under the employer’s existing policies as of the ordinance’s effective date. Employers cannot take retaliatory personnel action or discriminate against an employee who exercises rights protected by the ordinance.

For more information, please see the links below:

Public Health Emergency Leave (PHEL)

PHEL Model Notice

Article 1Article 2Article 3

What do employers need to do?
Employers should review the links provided above, make immediate adjustments to their paid sick leave policies, provide the PHEL notice to employees and post in a conspicuous location, and determine whether and how they can comply via existing policies or, alternatively, how to develop a compliant,

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