July 2021 Pennsylvania HR Legal Updates

Salary Threshold for Exemption is Repealed in Pennsylvania 

Update Applicable to:
All employers in Pennsylvania. 

What happened?
On July 9, 2021, Governor Tom Wolf agreed to repeal new exempt executive, administrative and professional (EAP) salary thresholds with HB 336. 

What are the details?
The bill, effective September 7, 2021, repealed the Pennsylvania Department of Labor and Industry’s (DLI’s) previously enacted rule under the Pennsylvania Minimum Wage Act (PMWA) that substantially increased the salary threshold needed for an employee to qualify as an exempt EAP employee in an agreed exchange to provide additional funding for schools. The standards will restore to those prior to 2020 and the entire regulatory framework that defines the EAP exemptions that have been in effect since 1977.  

At this time there is no regulatory definition to confirm the definition of an exempt EAP employee, but the PMWA statute continues to provide that bona fide EAP employees remain exempt. 

The bill can be read here

An article on the law can be read here. 

What do employers need to do?
Employers should familiarize themselves with the law and the repeal of the previous rule on EAP employee exemption thresholds to update any applicable workplace policies. 

 

May 2021 Pennsylvania HR Legal Updates

Philadelphia Passes Law Restricting Pre-Employment Marijuana Tests

Update Applicable to:
All employers in Philadelphia, Pennsylvania.

What happened?
On April 28, 2021, Bill No. 200625 was passed by Mayor Kenney.

What are the details?
Bill No. 200625 was signed to be effective as of January 1, 2022. This bill prohibits employers from requiring prospective employees to undergo testing for the presence of marijuana as a condition of employment. This bill does not impact all employers, the prohibition does not apply to individuals applying to work in the following professions.

  • Police officer or other law enforcement positions;
  • Any position requiring a commercial driver’s license;
  • Any position requiring the supervision or care of children, medical patients, disabled or other vulnerable individuals;
  • Any position in which the employee could significantly impact the health or safety of other employees or members of the public, as determined by the enforcement agency and set forth in regulations pursuant to the bill.

It also does not apply to drug testing required pursuant to:

  • Any federal or state statute, regulation, or order that requires drug testing of prospective employees for purposes of safety or security;
  • Any contract between the federal government and an employer, or any grant of financial assistance from the federal government to an employer that requires drug testing of prospective employees as a condition of receiving the contract or grant; or
  • Any applicants whose prospective employer is a party to a valid collective bargaining agreement that specifically addresses the pre-employment drug testing of such applicants.

The bill will also require that the agency, which is decided by the mayor, will be tasked with the responsibility for enforcement to make the regulations widely known for the implementation and administration of the new requirements.

The bill can be read here.

A reference article can be found here.

What do employers need to do?
Employers should follow the guidelines listed in the bill to continue to stay in compliance once the bill is active.

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Philadelphia Updates Workplace Protections for Victims of Domestic Violence

Update Applicable to:
All employers in Philadelphia, Pennsylvania.

What happened?
On May 11, 2021, Bill No. 210249 was passed into law.

What are the details?
Bill No. 210249 was passed into law on May 11, 2021, and to be immediately enacted to strengthen workplace protections for victims of domestic violence. The bill adds “coercive control” to the definition of “domestic abuse” under the Promoting Healthy Families and Workplaces bill used by the city’s unpaid safe time leave ordinance: Entitlement to Leave due to Domestic Violence, Sexual Assault, or Stalking Ordinance.

Under both laws, “coercive control” will mean:

“A pattern of threatening, humiliating, or intimidating actions toward an individual used to punish or frighten the individual, including but not limited to a pattern of behavior that, in effect, takes away the individual’s liberty, freedom, or sense of self, safety, or bodily integrity; including, but not limited to, a pattern of one or more of the following actions:

  • Isolating the victim from support networks;
  • Controlling the victim’s economic and other resources, such as transportation;
  • Closely monitoring the victim’s activities, communications, or movements;
  • Repetitively degrading and demeaning the victim;
  • Threatening to kill or harm the victim or the victim’s children or relatives or pets; or to take steps to separate the victim from the victim’s children and or pets;
  • Threatening to publish or publishing sexualized, false, or embarrassing information, videos, photographs, or other depictions of the victim;
  • Damaging or taking the victim’s property or possessions;
  • Displaying or referring to weapons as a means to intimidate or threaten; or
  • Forcing the victim to engage in unlawful activity.”

Both of the ordinances will allow employees to take job-protected leave for reasons not limited to themselves, but also if a family member is a victim of domestic violence. The amounts for leave and pay status will be varied based on the employer size and type of leave being requested.

Bill No. 210249 can be read here.

A reference article can be found here.

What do employers need to do?
Employers should review the law and guidance to ensure compliance with the new definition.

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Reminder: Unemployment Notice Requirements for Pennsylvania Employers

Update Applicable to:
All employers in Philadelphia, Pennsylvania.

What happened?
In March 2020, Governor Wolf signed Act 9 of 2020.

What are the details?
Employers should remember that while Act 9 was signed in response to the pandemic, it is a permanent requirement for any laid-off employee who may make an unemployment claim. The notice requirement of Act 9 must include the following information:

  1. The “availability of unemployment compensation benefits to workers who are unemployed and who meet the requirements” of the Pennsylvania Unemployment Compensation Law;
  2. The “ability of an employee to file an unemployment compensation claim in the first week that employment stops or work hours are reduced” (i.e. eliminating the seven-day waiting period);
  3. The “availability of assistance or information about an unemployment compensation claim” on the website of the Pennsylvania Department of Labor and Industry or by calling its toll-free phone number (888) 313-7284; and
  4. “That the employee will need certain information to file a claim, including:
    1. the employee’s full legal name;
    2. the employee’s Social Security number; and
    3. if not a citizen or resident of the United States, authorization to work in the United States.”

The Department of Labor and Industry has provided a template notice for employers to use, which can be found here.

What do employers need to do?
Employers should ensure they are complying with the notice requirement. If they are not already, employers should adopt the model notice provided by the Department of Labor and Industry to remove any uncertainty in compliance with the requirement.

April 2021 Pennsylvania HR Legal Updates

Philadelphia Enacts 2021 Public Health Emergency Leave

Update Applicable to:
All employers operating within Philadelphia.

What happened?
On March 17, 2021, the Philadelphia City Council unanimously passed a bill amending the city’s previous Public Health Emergency Leave (PHEL) legislation. On March 29, 2021, Mayor Kenney signed the amendments into law, effective immediately.

What are the details?
The amendments provide eligible employees up to an additional 80 hours of 2021 PHEL between March 29, 2021, and one week following the official termination or suspension of the public health emergency.  Covered reasons for use of available PHEL have been expanded to include leave to receive and recover from COVID-19 vaccinations.

Notably, employers are required to provide covered employees with a notice of rights by April 13, 2021.  The traditional non-COVID-19 paid sick leave benefit under the Philadelphia Promoting Healthy Families and Workplaces ordinance is not generally affected by the 2021 PHEL amendments.  The 2021 PHEL amendments sunset upon expiration of the Proclamation of Disaster Emergency of the Governor of Pennsylvania related to the COVID-19 pandemic. 

Employees who work 40 or more hours per week are eligible for 80 hours of 2021 PHEL, unless the employer designates a higher amount.

Employees who work fewer than 40 hours in a week are eligible for an amount of 2021 PHEL equal to the amount of time the employee is otherwise scheduled to work or works on average in a 14-day period, whichever is greater, unless the employer designates a higher amount.  Employees whose schedules vary from week to week are eligible for an amount of 2021 PHEL equal 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 14. 

For purposes of 2021 PHEL, exempt employees are assumed to work 40 hours per week, unless their normal work-week is less than 40 hours, in which case they are eligible for an amount of leave based on that normal workweek.

An eligible employee may use 2021 PHEL when he or she is unable to work due to one or more of the following reasons:

  • To care for oneself or a family member when it has been determined by a public official or public health authority having jurisdiction, a health-care provider, or an employer, that the employee or family member’s presence on the job or in the community would jeopardize the health of others because of their exposure to COVID-19 or because they are exhibiting symptoms that might jeopardize the health of others, regardless of whether the employee or family member has been diagnosed with COVID-19;
  • To care for oneself or a family member diagnosed with or showing symptoms of COVID-19, or seeking a diagnosis, care, or treatment if experiencing symptoms of an illness related to COVID-19;
  • To care for a child whose school or place of care has been closed, or whose childcare provider is unavailable, due to precautions taken per the public health emergency response;
  • An employee’s need to obtain a COVID-19 vaccine; or
  • An employee’s need to recover from any injury, disability, illness, or condition related to such vaccination.

The mandate requires employers to post in the workplace, or if the workforce is mostly remote, the employer may distribute the notice via electronic means. Employers are also required to provide the notice to all employees, as of April 13, 2021.

The required posting/notice can be found here.

An article providing additional details about this paid leave can be found here.

What do employers need to do?
Employers operating within Philadelphia should update their workplace policies to reflect the changes to the PHEL program.

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.