December 2020 Pennsylvania HR Legal Updates

Pittsburgh Mandates COVID-19 Related Paid Time Off

What happened?
Effective December 9, 2020, the City of Pittsburgh has enacted a law requiring employers with 50 or more employees to provide paid time off for employees working in the city who miss work due to reasons related to COVID-19.

What are the details?
The employees entitled to paid time off are those who (a) work in the city; (b) normally work in the city, but are now teleworking from outside the city; and (c) employees who work at various locations, provided that at least 51 percent of their time is spent in the city.

An employee is eligible for paid time off after being employed for 90 days. Once an employee has been employed for 90 days, they are immediately entitled to take the full allotment of time off. There is no obligation to first accrue the paid time off.

The amount of paid time off is 80 hours for employees who work at least 40 hours per week. Part-time employees are entitled to paid time off in an amount equal to the average number of hours they are either scheduled to work or actually work.

Employees may utilize the leave for any of the following reasons:

  1. The employee is self-isolating because the employee has been diagnosed with COVID-19, or is experiencing symptoms or seeking a medical diagnosis related to COVID-19;
  2. The employee is told by a public official, health care provider, or the employer that the employee’s presence at work would jeopardize the health of others;
  3. The employee is exhibiting symptoms that could jeopardize the health of others, regardless of whether the employee has been diagnosed with COVID-19; or
  4. The employee is taking care of a family member who meets the standards in one through three above.

The ordinance will remain in effect until the end of the state of emergency declared within the City of Pittsburgh.

The full text of the ordinance can be found here.

What do employers need to do?
Employers with 50 or more employees, with any working within the City of Pittsburgh should update their paid time off policies and update their management teams about the new requirement.

November 2020 Pennsylvania Legal HR Updates

Pittsburgh and Allegheny County Pass CROWN Acts

What happened?
The City of Pittsburgh and Allegheny County have passed the Creating a Respectful and Open Workplace for Natural Hair (CROWN) Acts.

What are the details?
The CROWN Acts prohibit discrimination based on any characteristic, texture, form, or manner of wearing an individual’s hair if such characteristic, form, or manner is commonly associated with a particular race, national origin, gender, gender identity or expression, sexual orientation, or religion. 

The Allegheny County CROWN Acts can be found here.

The City of Pittsburgh’s CROWN Acts can be found here.

What do employers need to do?
Employers within Allegheny County or the City of Pittsburgh should review their workplace dress code policies to ensure they are not discriminating against protected hairstyles. Managers may need to be trained on any changes in workplace policies. 

October 2020 Pennsylvania HR Legal Updates

Pennsylvania Increases White Collar Exemption Salary Threshold

What happened?
The Pennsylvania Department of Labor and Industry published its final rule to substantially increase the salary threshold for qualifying as an exempt Executive, Administrative, and Professional (EAP) employee under the Pennsylvania Minimum Wage Act.

What are the details?
The regulation increases the EAP salary threshold under Pennsylvania law to:

  • $684 per week ($35,568 annually) effective October 3, 2020;
  • $780 per week ($40,560 annually) effective October 3, 2021; and
  • $875 per week ($45,500 annually) effective October 3, 2022.

The regulation also includes other changes to the exemption, including new changes to the duties test and allowing employers to give up to 10% of the employee’s salary requirement as nondiscretionary bonuses, incentive, and commissions that are paid annually or more frequently. 

An article covering the final rule in more depth can be found here.

What do employers need to do?
Employers in Pennsylvania should consult their employment attorney if they think they may be out of compliance, to review their options. Otherwise, they should consult with their payroll specialist to look at their options to increase necessary worker wages to maintain existing exemption status on select employees.

October 2020: Philadelphia Provides Paid Sick Leave Related to COVID-19

What happened?
On September 17, 2020, Mayor Kenney signed into law amendments that create new paid sick leave requirements related to COVID-19.

What are the details?
The city of Philadelphia already has a paid sick leave ordinance available to the workers inside the city limits. However, the city council has decided to expand the ordinance to emulate the leave provided by the Families First Coronavirus Response Act (FFCRA). The requirement to provide public health emergency leave will sunset on December 31, 2020.

Who Is Covered?
The new paid sick leave will apply to all employees working within the city limits for at least 40 hours in a one-year period. Notably, the definition of employee is being stretched so far in this ordinance that there is a clause included creating a rebuttable presumption that any individual performing work for a hiring entity is an employee.

All employers with 500 or more employees will be required to provide this public health emergency leave.

How Many Hours?
Employers will need to provide the greater of either 80 hours or the average hours worked over a 14-day period, up to a maximum of 112 hours, for employees who work 40 hours or more per week. Employees who work less than 40 hours per week will receive their prorated number of hours based on their average hours in a 14-day period.

The time period used to calculate the “average in a 14-day period” is based on the preceding six months before the public health emergency was declared. If the employee did not work during that time, the reasonable expectation of the covered employee at the time of hiring will be used instead.

The maximum amount of 112 hours is refreshed each time either:

  1. A public official declares a new public health emergency based on a different emergency health concern; or
  2. A public health official declares a second public health emergency for the same emergency health concern more than one month after the first public health emergency officially ended.

When Can the Leave Be Used?
As long as a public health emergency exists, the employees may use the leave for the following reasons:

  • Being subject to a federal, state, or local quarantine or isolation order related to the public health emergency.
  • Being advised by a healthcare provider to self-quarantine due to concerns related to the public health emergency.
  • Experiencing symptoms related to the public health emergency and seeking a medical diagnosis.
  • Caring for an individual who is subject to a quarantine or isolation order as described above or has been advised by a healthcare provider to self-quarantine as described above.
  • Caring for the covered individual’s child whose school or place of care has been closed or whose childcare provider is unavailable due to precautions taken in accordance with the public health emergency response.
  • Experiencing any other substantially similar condition specified by the U.S. Secretary of Health and Human Services in consultation with the U.S. Secretary of the Treasury and the U.S. Secretary of Labor.

Employers do not need to provide public health emergency leave to employees who may work remotely.

When the need to use the leave is foreseeable, the employee must provide notice as soon as practicable. Employers may require a self-certified statement from employees that the leave they used was for a covered reason.

Notice and Posting Requirements

Employers are required to provide a covered individual with a notice of their rights prior to October 2, Covered individuals who have yet to receive this notice should be made aware of their rights immediately. This may also be satisfied by displaying a poster that contains the following information:

  • that employees are entitled to sick time;
  • the amount of sick time;
  • the terms of its use as guaranteed under the law;
  • that retaliation against employees who request or use sick time is prohibited; and
  • that each employee has the right to file a complaint or bring a civil action if sick time is denied by the employer or the employee is retaliated against for requesting or taking sick time.

If the physical workplace is not being used, the notice may be distributed online through email or a conspicuous posting on the employer’s web-based platform.

The information must also be included in any employee handbooks that are distributed to employees.

The city of Philadelphia has provided information on a dedicated webpage about this leave here.

The city-provided poster can be found here.

What do employers need to do?
Employers with 500 or more employees should contact their Client Relations Representative if they have any questions about employee eligibility.

August 2020 Pennsylvania HR Legal Updates

Philadelphia’s Salary History Ban Will Finally Be Enforced

What happened?
On September 1, 2020, the Philadelphia Commission on Human Relations will begin enforcing the Wage Equity Ordinance (Ordinance), which prohibits employers in Philadelphia from asking job applicants for their salary history and from using salary history information to set wage rates.

What are the details?
Starting September 1, 2020, Philadelphia employers will no longer be able to ask job applicants about their salary history or require job applicants to disclose their salary history during the application process. Applicants may choose to disclose their wage history voluntarily, but an employer cannot use that information in setting initial wages. Finally, Philadelphia employers may not retaliate against applicants who refuse to disclose their wage history in accordance with the Ordinance.

An FAQ covering this ordinance can be found here.

The ordinance itself can be found here.

What do employers need to do?
The HR team of the employer should update their interview processes to accommodate the new restriction on what questions may be asked of potential Philadelphia-based employees.

July 2020 Pennsylvania HR Legal Updates

Pennsylvania Mandates Telework (If Possible), Restricts Other Businesses

What happened?
Pennsylvania Governor Tom Wolf has issued a new order mandating that businesses that can work remotely must start operating remotely, as well as restrictions being applied to other businesses.

What are the details?
The Wolf administration has issued a new executive order. The order restricts many businesses in their capacity and everyday operations. Bars have been ordered to only offer drinks on a take-out basis.

Restaurants may operate at 25% capacity inside or allow seating outside as long as customers are able to adhere by the physical distancing requirements. Restaurants may still serve alcohol, but it must be for on-site consumption and it must be served alongside a meal.

The order will also impact offices. Any company that can continue operations with employees working remotely must start the process immediately. Companies that are unable to telework may continue to

work on-site but must conform to the building safety order, the worker safety order, and the masking order.

The executive order in its entirety is available here.

The building safety order can be found here, the worker safety order can be found here, and the masking order can be found here.

What do employers need to do?
Employers in Pennsylvania should review the order and update their policies to reflect the orders regarding how they should be operating. Bars and restaurants should immediately reduce capacity at their locations. Offices that are able to, should send employees home to begin working remotely.

June 2020 Pennsylvania HR Legal Updates

Summary of State Laws (Q1 & Q2 2020)

Philadelphia Salary History
Effective February 6, 2020, an injunction was lifted that had blocked part of a 2017 Philadelphia ordinance that would have prohibited employers from asking applicants about their wage history. As such, employers cannot:

  • Inquire about a prospective employee’s wage history in writing or otherwise
  • Require disclosure of a prospective employee’s wage history
  • Condition employment or consideration for an interview or employment on the disclosure of wage history
  • Rely on a prospective employee’s wage history from any current or former employer in wage determinations for that individuals at any stage during the employment process, including negotiating or drafting an employment contract, unless the prospective employee “knowingly and willingly” discloses that information
  • Retaliate against a prospective employee for failing to comply with a wage history inquiry or opposing an unlawful act under Philadelphia’s Fair Practices Ordinance

However, employers can take action pursuant to federal, state or local law that specifically authorizes disclosure or verification of wage history for employment purposes. Employers can also ask prospective employees other questions relevant to setting a salary and relative to the position, to including the applicant’s salary requirements or expectations, skill level, and experience.

April 2020 Pennsylvania HR Legal Updates

Safety Measures for COVID-19

What happened?
All non-healthcare businesses who are authorized to be open must make the changes listed below.

What are the details?

  1. Ensure workspaces are cleaned regularly in compliance with CDC guidelines;
  2. Provide soap and hand sanitizer;
  3. Provide masks to all employees to wear while on the worksite;
  4. Stagger arrivals, departures, and breaks;
  5. Provide sufficient space for employees to have breaks or meals at least six feet apart;
  6. Limit in-person meetings to no more than 10 people;
  7. Do not have too many staff in the workplace to conflict with the social distancing guidelines;
  8. Non-essential visitors should be prohibited from entering the workplace; and
  9. Employees must be informed of these requirements orally or in writing.

All Businesses with Probable or Confirmed COVID-19 Case

  1. Close off the areas visited by the person, open doors and turn on fans, and then clean after 24 hours or as long as practicable;
  2. Identify all employees who were in close contact with the diagnosed individual (within six feet for at least 10 minutes) within the previous 48 hours;
    1. Asymptomatic – Adhere to CDC guidelines
    2. Symptomatic – Send home immediately
  3. Promptly notify other employees determined to be in close contact;
  4. Implement temperature screening and send employees home who have a temperature of at least 100.4 degrees;
  5. Sick employees should stay home if they have any symptoms related to COVID-19; and
  6. Ensure the business has enough staff to comply with these directives effectively and timely.

Additional Rules

  1. Businesses should operate by appointment only, or limit occupancy to no more than 50% of limit;
  2. Adjust hours to ensure cleaning and restocking is completed;
  3. Schedule hourly breaks for staff to wash hands;
  4. All customers must wear masks, unless under the age of two or cannot wear a mask due to health reasons;
  5. Social distancing must be maintained;
  6. Signs should be placed informing public of social distancing rules;
  7. Install shields or other barriers;
  8. Companies with registers may only use every other register;
  9. Carts are required to be cleaned;
  10. Online ordering should be encouraged; and
  11. Elderly/high risk shopping time must be provided at least once a week.

What do employers need to do?
Comply with the above stipulations.

Resources
https://www.littler.com/publication-press/publication/significant-new-covid-19-health-and-safety-requirements-imposed

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Philadelphia Fair Workweek Law

What happened?
On April 21, 2020, the Mayor’s Office of Labor issued a post restating the key provisions of the city of Philadelphia’s new Fair Workweek law, which took effect on April 1 despite the COVID-19 pandemic. The Fair Workweek law in Philadelphia requires covered employers to provide service, retail, and hospitality workers with a predictable work schedule. It also requires employers to provide good faith estimates and 10-day advance notice of work schedules, along with other worker protections.

What are the details?
Covered employers include retail, hospitality, and food services establishments with 250 of more employees (including full-time, part-time, seasonal, and temporary workers) and 30 or more locations worldwide, including chain establishments and franchises. While many such employers are currently not operating as a result of COVID-19, the new law presents an issue for them as they restart operations.

The new ordinance requires covered employers to:

  • Post and provide 10-day advance notice of work schedules;
  • Provide new employees with a written, good faith estimate of the employee’s work schedule and revise the good faith estimate when there is a significant change to the employee’s work schedule due to changes in the employee’s availability or to the employer’s business needs (employers have until July 1, 2020, to provide existing employees with a written good faith estimate of average work hours);
  • Obtain employee consent when requesting to add hours to the employee’s posted work schedule;
  • Obtain employee consent in writing, and compensate the employee $40, in the event it wants the employee to work any hours scheduled less than nine hours after the end of the previous day’s shift;
  • Offer existing employees the right to additional work shifts before hiring new employees;
  • Notify each employee of its policy for offering and distributing work shifts under this law, at the time of hire and within 24 hours of any change in the policy; and
  • Award predictability pay, a premium pay given to employees when there is an employer initiated change to the 10-day advance notice of work schedule (the city has confirmed that this predictability pay requirement will not by enforced until further notice due to COVID-19 and associated impacts on business activity).

As mentioned above, the city will not be enforcing the predictability pay requirement until further notice. Aside from that, employers are expected to comply with all other provisions of the law at the present time.

What do employers need to do?
The Fair Workweek law is complex and requires employers to adjust their practices relating to scheduling of employees and assignment of work. To the extent employers are not already in compliance with the law, they should begin by taking the following first steps in order to meet the challenges of fulfilling their obligations: (1) Begin averaging hours for existing employees in order to meet the good faith estimate deadline of July 1, 2020; (2) Change scheduling practices to account for the 10-day advance notice of work schedules; and (3) Develop a written policy that complies with the law. Employers must prove compliance with the law if an employee files a complaint, and employers are in the best position do so when they have specific policies and procedures in place that have been developed or modified to conform with the law, such as the following: policy for call-outs; procedure for documenting shift swaps; procedure for how time stamped schedules will be recorded and kept; procedure for monitoring good faith estimates; and policy on how new work hours will be distributed to existing employees. Because the law provides that its provisions may be waived in a collective bargaining agreement, covered employers with collective bargaining agreements should consider seeking a waiver of the law’s requirements.

Resources
https://www.phila.gov/2020-04-21-fair-workweek-during-the-covid-19-pandemic/

March 2020 Pennsylvania HR Legal Updates

Paid Sick Leave Ordinance

What happened?
Pittsburgh, PA passed a law to provide additional paid sick leave effective March 15, 2020.

What are the details?
Employers are required to offer paid sick leave as follows:

  • Fewer than fifteen employees: Up to 24 hours of unpaid sick the first year of the Act. Effective March 15, 2021, need to provide 24 hours of paid sick leave per year.
  • Fifteen or more employees: Provide 40 hours of paid sick leave per year.

Employees must accrue at least one hour for every 35 hours worked within the geographic boundaries of Pittsburgh. If an employee’s place of work is outside Pittsburgh, but the employee works at least 35 hours within Pittsburgh in a calendar year, that employee is eligible for this paid leave.

What do employers need to do?
Update policies to meet the requirements listed above.

https://www.lawandtheworkplace.com/2020/02/pittsburgh-paid-sick-leave-ordinance-to-take-effect-march-15-2020/

February 2020 Pennsylvania HR Legal Updates

Salary History Ban

What happened?
The city will set a new effective date with input from the business community.  While 120 days from Third Circuit’s order would be June 5, 2020, the city could set an earlier date, so employers should begin preparing now.  

What are the details?
The Ordinance prohibits employers from asking prospective employees about past wages, with the stated goal of disrupting the flow of information that might otherwise be used to set pay and possibly perpetuate the gender pay gap.

What do employers need to do?

  • Revise hard copy and online applications to delete questions asking for wage history and consider asking about salary expectations in the application or later in the hiring process.   
  • Develop talking points or script and forms to document screening calls and interviews that provide guidance on what can and cannot be asked, and how to document any knowing and willing disclosure of wage history. 

Article: https://www.littler.com/publication-press/publication/when-hiring-jobs-located-philadelphia-salary-history-will-soon-be

Bill: https://www.dli.pa.gov/Individuals/Labor-Management-Relations/llc/Pages/Equal-Pay-Law.aspx