Workers who are able to work remotely are not entitled to public health emergency leave under the bill.

Update: Mayor Jim Kenney signed the Philadelphia Public Health Emergency Leave bill into law on September 17, 2020. The bill took effect immediately and will remain in effect until December 31, 2020.

On September 10, 2020, the Philadelphia City Council voted 16-1 in favor of a bill that expands paid sick leave benefits to Philadelphia workers who are not covered by federal sick leave laws, such as the Families First Coronavirus Response Act (FFCRA). The bill will broaden the scope of Philadelphia’s Promoting Healthy Families and Workplaces sick leave law by providing paid “public health emergency leave” to more people who work within the geographic boundaries of the city, including individuals workings for companies with 500 or more employees, independent contractors and “gig economy” workers. Mayor Jim Kenney’s administration has indicated he supports the bill, and thus we expect he will sign it.

Overview

Under Philadelphia’s amended sick leave law, all “covered individuals” (see below) will be entitled to up to a maximum of 112 hours of paid “public health emergency leave.” A covered individual can use public health emergency leave for reasons that track the FFCRA, including when the individual is unable to work due to one or more of 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 federal, state or local quarantine or isolation order related to the public health emergency, or has been advised by a healthcare provider to self-quarantine due to concerns related to the public health emergency;
• Caring for a child of such covered individual if their school or place of care has been closed, or the child care provider of such child is unavailable due to precautions taken in accordance with the public health emergency response; and/or
• 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.

Notably, however, workers who are able to work remotely are not entitled to public health emergency leave under the bill.

“Hiring Entities” – Including, but Not Limited to, Employers – Covered Under the Bill

The bill covers all “hiring entities”―defined as employers, individuals, corporations and other entities―with employees or workers performing service in Philadelphia, regardless of size or number of employees or workers.

Workers Covered Under the Bill

The bill defines “covered individuals” to include all employees and the following workers or independent contractors who perform services within the geographic boundaries of the city of Philadelphia for at least 40 hours per year:

• Individuals who perform work in residences for the purposes of caring for a child; serving as a companion or caretaker for someone sick, convalescing, elderly or a person with a disability; housekeeping or house cleaning; cooking; providing food or butler service; parking cars; cleaning laundry; gardening; personal organizing; or any other domestic service.
• Individuals who perform services under the participant directed and agency homecare model.
• Individuals who work for a “food delivery network company,” including as a driver. This includes individuals working for app-based food delivery services.
• Any individual that works for a transportation network company, including work as a driver. This includes individuals working for ride-hailing services.
• Any individual that works as a healthcare professional only when such individual indicates that the individual is available for work and who has no obligation to work when the individual does not indicate availability.

The bill defines “employee” as an individual employed by any individual, partnership, association, corporation or business trust who performs work within the city limits for a least 40 hours per year. The bill creates a rebuttable presumption that an individual is an employee, unless the hiring entity can demonstrate the three factors of what is commonly referred to as the “ABC test.” Those factors include: (1) the individual is free from control and direction of the hiring entity; (2) the individual performs labor or services that are outside the usual course of the hiring entity’s business; and (3) the individual is “customarily engaged in an independently established trade, occupation, profession or business.”

Importantly, individuals who are entitled to leave under the FFCRA are not entitled to public health emergency leave from the same hiring entity. Philadelphia City Council intended the bill to cover workers who were not eligible for federal paid leave benefits. The bill also carves out certain exceptions for employees subject to collective bargaining agreements.

Amount of Leave Hiring Entities Are Required to Provide

An individual who works 40 hours or more per week for a single hiring entity is entitled to either 80 hours of public health emergency leave or the average amount of hours that individual worked over a 14-day period, up to a maximum of 112 hours, whichever is greater. Employees who are exempted from overtime under the Fair Labor Standards Act (FLSA) will be assumed to work 40 hours in each week. Unlike existing paid sick leave under the Promoting Healthy Families and Workplaces law, covered workers do not accrue paid public health emergency leave; rather, it is available to them when the bill becomes effective.

An individual who works less than 40 hours per week is entitled to public health emergency leave in an amount equal to the amount of wages or other compensation the individual receives on average in a 14-day period, from each hiring entity that employs that individual.

If an individual works for multiple entities, they will receive public health emergency leave through a “centralized portal” overseen by an agency designated by the mayor’s office. This centralized portal will collect and distributed funds from each of the entities that employs the individual. During the period before the centralized portal is created, an individual who works for multiple entities will be entitled to leave from each entity equal to the amount of wages or other compensation received on average in a 14-day period from such entity.

An individual will be entitled to the full complement of public health emergency leave each time a public official declares a new public health emergency (based on a different emergency), or if a public official declares a second public health emergency for the same emergency health concern more than one month after the first public health emergency officially ends.

Timing and Use of Public Health Emergency Leave

A worker eligible for public health emergency leave can use all or a portion of their leave at any time during the public health emergency and for up to one month following the conclusion of the public health emergency. Public health emergency leave can run concurrently with other forms of leave provided by state or federal law, unless otherwise prohibited.

Notably, the amendments to Philadelphia’s sick leave law expire at the end of 2020. As of December 31, 2020, hiring entities will not be required to provide workers with public health emergency leave or allow a worker to use public health emergency leave previously provided.

Notice Requirements for Public Health Emergency Leave

An individual seeking public health emergency leave is required to provide their hiring entity with notice of the need for leave “as practicable and as soon as feasible.” Hiring entities may request the individual provide a “self-certified statement” asserting the leave was used in accordance with the bill. Hiring entities cannot require documentation from a public official and cannot require the individual to find coverage for any shifts they might miss.

All hiring entities will be required to provide employees and covered individuals with notice of their right to public health emergency leave within 15 days of the bill becoming law.

Prohibition on Retaliation and Job Restoration

A hiring entity cannot retaliate against an individual who exercises, or attempts to exercise, their right to public health emergency leave. Hiring entities also must restore individuals who take public health emergency leave to the position held when their leave began.

Additional Employee Protections in Connection with COVID-19 Emergency Health Order

The amendments to the Promoting Healthy Families and Workplaces law come on the heels of the June 26, 2020, Employee Protections in Connection with COVID-19 Emergency Health Order, more commonly known as the Essential Workers Protection Act (EWPA). The EWPA prohibits Philadelphia employers from retaliating against employees who either (1) disclose information relating to employer noncompliance with COVID-19 public-health orders or (2) refuse to work in unsafe conditions related to COVID-19.

The EWPA prohibits Philadelphia employers from taking an adverse employment action against any employee:

• For making a “protected disclosure,” defined as: “A good faith communication, including a communication based on, or when carrying out, job duties, that discloses or demonstrates an intention to disclose information that may evidence a violation of a COVID-19 public health order that may significantly threaten the health or safety of employees or the public, if the disclosure or intention to disclose was made for the purpose of remedying such violation”; and
• For “refusing to work in unsafe conditions if the employee reasonably believes that the employer is operating in violation of a COVID-19 public health order in a manner that has created the unsafe condition.” However, an employee may not refuse to work if the employer “provides a reasonable alternative work assignment that does not expose the employee to the unsafe condition,” or “upon inspection by the Philadelphia or Pennsylvania Department of Health the [employer] proves it is compliant with all public health orders addressing safe workplace practices.”

What This Means for Philadelphia Employers

Employers, and individuals and entities doing business in Philadelphia who engage workers, should review their leave policies and practices to determine whether such policies comply with the amendments to the Promoting Healthy Families and Workplaces law, and should consult with counsel to determine which of their workers, if any, may be eligible for emergency public leave.

Employers also should ensure they are up to date and in compliance with all COVID-19 safety orders issued by local, state or federal authorities, particularly because such orders are frequently revised. In addition, employers should review their internal complaint process to ensure that it appropriately addresses COVID-19-related complaints or refusals to work. Human resources personnel and managers should be trained on the employer’s internal complaint process and be advised of Philadelphia’s anti-retaliation protections.

About Duane Morris

Duane Morris has created a COVID-19 Strategy Team to help employers plan, respond to and address this fast-moving situation. Contact your Duane Morris attorney for more information. Prior Alerts on the topic are available on the team’s webpage.

For More Information

If you have any questions about this Alert, please contact Christopher D. Durham, Danielle M. Dwyer, any of the attorneys in our Employment, Labor, Benefits and Immigration Practice Group, any member of the COVID-19 Strategy Team or the attorney in the firm with whom you are regularly in contact.

Disclaimer: This Alert has been prepared and published for informational purposes only and is not offered, nor should be construed, as legal advice. For more information, please see the firm's full disclaimer.