Among others, workers may use leave to recover from COVID-19, to care for family members infected with COVID-19, to care for children whose school was closed due to COVID-19, or to receive the COVID-19 vaccination or booster shot (as well as to address side effects related to vaccination). This law is the third iteration of the Public Health Emergency Leave law previously passed by Philadelphia City Council in response to COVID-19. The law will not expire until December 31, 2023.
The law applies to any employer with at least 25 employees. “Employees” is defined as “an individual (i) working for [an] [e]mployer within Philadelphia after the effective date of [the] Ordinance, (ii) who normally works for that [e]mployer within the City of Philadelphia but is currently teleworking from any other location as a result of COVID-19, or (iii) [who] works for that [e]mployer from multiple locations or from mobile locations, provided that 51% or more of such employee’s time is present within the City of Philadelphia.” Notably, however, the law only covers employees who are expected to physically report to their jobs.
Paid sick leave for COVID-19 related absences is immediately available to employees. Indeed, employers cannot require employees to wait a period of time or accrue this paid time off. Moreover, employers cannot require their employees to exhaust other paid leave prior to using their COVID-19 sick leave.
Full-time employees who work 40 or more hours per week are entitled to up to 40 hours of COVID-19 leave. In contrast, employees who work fewer than 40 hours per week shall be provided an amount of time equal to the amount of time that the employee actually works, or is otherwise scheduled to work, on average in a 7-day period. For part-time employees whose schedule varies from week to week, the law provides guidance for calculating leave hours based on the employee’s average number of daily hours over the past 90 days of work.
Of course, employers are permitted to designate a higher limit of paid sick leave for any employee. Similarly, where employers already provide paid leave for employees and allow employees to use their leave for COVID-19 related absences, their current policies may not need to be updated. For example, if a current leave policy provides 120 hours or more paid time off in 2022, employers need not change their existing policies. Relatedly, employers need not change their current policies or provide additional paid leave to employees who complete the majority of their work through teleworking, so long as the teleworking employees are provided with at least 80 hours of paid leave in 2022.
Employees are required to provide notice to their employer of the need for COVID-19 leave “as practicable and as soon as feasible.” However, employees are not required to provide proof of a positive COVID-19 test. Instead, employees must submit a self-certified statement that they used their COVID-19 paid sick leave.
In response to this law, employers must provide notice of these provisions to employees within 15 days (on or before March 24, 2022). The notice must be posted in the office or provided electronically for employees who are teleworking. Moreover, employers should review their current leave policies to ensure it provides the proper amount of paid COVID-19 sick leave for Philadelphia employees.
Co-authors Jonathan Krause, Chair and Stephanie Wolbransky, associate are members of the Litigation Department at Klehr Harrison.