Philadelphia City Council Passes Legislation Reinstating Public Health Emergency Leave

The legislation builds off a 2020 Public Health Emergency Leave bill passed in September, which provided essential workers, who were excluded from the Families First Coronavirus Response Act, with paid sick leave benefits. The sick leave protections in that bill expired on December 31, 2020. This new legislation extends the paid leave benefits for the duration of the declared public health emergency.

The bill applies to employers with more than 50 employees with its obligations applying retroactively to January 1, 2021. If an employer adopted a policy on or after March 6, 2020, that provided employees with additional paid time for use during the COVID-19 pandemic in 2021, employers may substitute such leave under the employer policy to the extent it coincides.

An employee qualifies for the public health emergency leave if: (i) they work within Philadelphia; (ii) they normally work for an employer in Philadelphia but are currently teleworking from any other location due to COVID-19; or (iii) they work for an employer from multiple locations with 51% or more of the employee’s work time spent within Philadelphia. An employee may use the public health emergency leave due to one or more of the following conditions:

• If the employee was exposed to COVID-19 or is exhibiting symptoms that might jeopardize the health of others, regardless of whether the employee is diagnosed with COVID-19.
• If the employee needs to care for a family member who potentially was exposed to COVID-19, or the employer determines that the employee is a danger to the health of others because the employee is exhibiting symptoms that might jeopardize others, regardless of whether the family member is diagnosed with COVID-19.
• The employee needs to self-isolate or seek medical treatment to care for oneself because the employee is diagnosed with, or exhibiting symptoms of, COVID-19.
• The employee needs to care for a family member who is self-isolating or receiving medical treatment due to being diagnosed with COVID-19.
• The employee needs to care for a child whose school or place of care has been closed.
• The employee needs to obtain vaccination related to COVID-19.
• The employee needs to recover from an injury, disability, illness or condition related to the vaccination.

If an employee qualifies for leave, the amount of leave the employee receives varies based on the hours per week the employee works. In particular, employees who work 40 hours or more per week shall be provided with 80 hours of leave. For employees who work fewer than 40 hours in a week, the bill requires the employer to provide leave equal to the amount of time the employee works during a two-week period. An employee is entitled to use the leave under this proposal until one week following the official termination or suspension of the public health emergency.

Employers should remain mindful of how these leave requirements coincide with the leave requirements under the federal or state law. Specifically, employers may substitute leave under the federal or state law for its obligations under this bill, to the extent that the federal or state law coincides and the federal or state law permits concurrent use of paid leave. Further, to the extent that the requirements of this bill exceed the requirements of federal or state laws, employers should provide additional 2021 public health emergency leave.

Lastly, the bill also provides employees with a private right of action. After a public health emergency is declared or proclaimed, an employee shall have the right to file a civil action against an employer alleging a violation of the bill without first filing an administration complaint.

The bill has been sent to the Mayor’s office, where it is expected to be signed and thereafter become law. Once the bill has been signed by the Mayor, employers are required to provide its employees with notice of this expanded leave, including noticing employees via electronic communication or posting on a web-based platform. This expanded leave will remain in place until the Governor’s Proclamation of Disaster Emergency related to the COVID-19 pandemic expires.

The COVID-19 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.

Author Jonathan Krause is a chair of the litigation department at Klehr Harrison.