Philadelphia Enacts Work-Place Protection and Anti-Retaliation COVID-19 Ordinance
On June 26, 2020, Philadelphia Mayor Jim Kenney signed into law an ordinance entitled “Employee Protections in Connection with COVID-19 Emergency Health Order” (ordinance).
07.08.20
The ordinance generally requires:
- Employers to comply with existing public health orders related to COVID-19.
- Not to retaliate against employees that refuse to work in conditions that they reasonably believe are unsafe and are in violation of a public health order.
- Not to retaliate against an employee that discloses or demonstrates an intent to disclose information that may evidence a violation of a public health order that may threaten the health or safety of employees or the public.
Broad Application of the Ordinance
The ordinance is defined broadly and affects virtually any person that works in the City of Philadelphia. The ordinance defines “employee” to include “any individual who performs work for an ‘employer.’ An “employer” is defined to include corporate officers or executives that directly or indirectly own or operate a business within the city or exercise control over an employee’s wages, hours, or working conditions. Stated simply, the ordinance not only applies to employers but also those corporate officers and executives in an individual capacity that directs the operations of employers.
The Ordinance Requires Compliance with All COVID-19 Public Health Orders
The ordinance requires compliance with “with all applicable requirements of COVID-19 public health orders.”
No Retaliation Against Employees That Refuse to Work in Unsafe Conditions or Disclose Those Conditions
The ordinance requires that an employer not “take any adverse employment action against an employee,” when that employee refuses to work in conditions that he or she “reasonably believes” are in violation of a public health order that creates an unsafe condition and the employee has notified the employer of the condition. It is important to note that the conditions need not actually be unsafe for this ordinance to apply—rather, the employee’s reasonable belief that the conditions are unsafe are sufficient to permit an employee to refuse to work without an adverse employment action. However, an employee may not refuse to work when a “reasonable alternative work assignment” is given that does not expose the employee to the unsafe conditions. Moreover, if an inspection by either the Philadelphia or Pennsylvania Department of Health shows that the business is compliant with all public health orders, an employee may not refuse to work. Employees that make a disclosure regarding conditions that the employee reasonably believes are unsafe are also protected from adverse employment conditions.
If an employer takes an adverse employment action against an employee within 90 days of the employee’s exercise of rights granted under the ordinance, there is a rebuttable presumption of retaliation. The rebuttable presumption may be rebutted with evidence that the adverse action was taken for a permissible purpose.
Penalties
Under the ordinance, employees may bring suit for reinstatement, back pay, attorneys’ fees, and compensatory damages. Employers that violate the Ordinance may also be subject to penalties up to $2,000 per day in which a violation occurs.
Recommendations
The ordinance presents an acute risk of litigation for employers. The ordinance’s allowance of attorneys’ fees for prevailing employees will likely incentivize plaintiffs’ attorneys to take on cases where there is a perceived violation of the statute. Thus, we recommend that employers take the following steps:
- (Obviously) Comply with COVID-19 Public Health Orders.
- Promptly respond to employee claims of an unsafe working environment.
- Remedy any non-compliance Public Health Order immediately.
- If the working conditions are in compliance, consider offering an alternative working arrangement, or seeking an inspection from the Health Department to demonstrate compliance.
- If there are performance deficiencies or policy violations by an employee after complaining, consider whether adverse employment actions are warranted, and if so, document, document, document:
- Adverse employment actions such as discipline, terminations, or not being given a promotion taken within 90 days of an employee’s use of the ordinance are presumed to be retaliatory.
- If an adverse employment action is appropriate make sure the non-retaliatory supporting reasons for that adverse action are appropriately documented.
- The adverse employment action cannot be because the employee engaged in protected activity like making a good faith complaint.
The Coronavirus Task Force at Klehr Harrison stands ready to assist you in your business and legal needs. We will continue to provide additional information and guidance as the COVID-19 situation develops.
Co-authors Jonathan Krause, partner and Gregory Sellers, associate are members of the labor and employment practice group at Klehr Harrison.