Philly COVID Paid Leave is Back for 2021
This is a special Joint Blog written by myself and my colleague Katharine Batista.
Philadelphia Public Health Emergency Leave: The City’s New Paid Sick Leave Law
If you are an employer in Philadelphia, you’re likely aware of both Philadelphia’s paid sick leave law and the COVID-19 emergency leave, which expired on December 31, 2021. On March 18, 2021, City Council passed the final emergency sick leave bill to extend and replace the 2020 ordinance. Below is a summary of the key provisions below:
Is Your Business Covered?
Under the ordinance, covered employers include any individual, partnership, association, corporation, business trust, or any person or entity acting, directly or indirectly, in the interest of an employer in relation to any employee. However, your business is not covered if you have less than fifty (50) employees.
Which of Your Employees Are Covered?
Employees who have worked for your business for 90 or more days, who: (1) work within Philadelphia (2) normally work for an employer within Philadelphia, but are currently working remotely or (3) who works for an employer at multiple locations if 51% or more of their time is spent within Philadelphia.
When Do You Have to Provide Paid COVID-19 Sick Leave?
Under Philadelphia’s ordinance, an employer must provide paid leave if:
1. Quarantine: A public official or health authority or health care provider determines that the employee’s presence at work would jeopardize the health of others because that employee has been exposed to COVID-19 or is exhibiting such symptoms, regardless of whether the employee has received a diagnosis;
2. Quarantined Family Care: An employee needs to care for a family member due to the above covered determination;
3. Diagnosis or Symptoms: An employee needs to self-isolate because they are exhibiting COVID-19 symptoms, have been diagnosed with the virus or is receiving medical care due to COVID-19 symptoms.
4. Diagnosed or Symptomatic Family: An employee needs to care for a family member due to the above covered diagnosis or symptoms.
5. Vaccine: An employee is obtaining a COVID-19 vaccine, or is recovering from a reaction to the vaccine; or
6. Child Care: An employee is caring for a child whose school or place of care is closed, or whose childcare provider is unavailable, due to COVID-19.
How Much Leave Do You Have to Provide?
An employer must provide employees who work 40+ hours at least 80 hours of paid sick leave, and an employee working less than 40 hours, an amount equal to the time the employee is otherwise scheduled to work or actually works in a 14-day period. If the employee’s schedule fluctuates, use the average number of daily hours the employee was scheduled over the past 90 days, multiplied by 14.
Also, any other paid sick leave provided to the employee prior to the effective date of the ordinance may not be used offset these requirements. Employees essentially get a new bucket of paid sick leave.
What about the Philadelphia Paid Sick Leave?
As we know, Philadelphia employers must provide Philadelphia Paid Sick Leave, which affords employees 40 hours of paid leave annually. Employers must beware that this Philadelphia COVID Leave is in addition to the Philadelphia Paid Sick Leave. In other words, this COVID leave does not run concurrently with the Philadelphia Paid Sick Leave.
It follows that Philadelphia employees are eligible for 40 hours of Philadelphia Paid Sick Leave, and the Philadelphia COVID Paid Leave. In some instances, this may be 120 hours of paid leave.
What About the FFCRA Leave?
The American Rescue Plan made the FFCRA optional for employers through September 30, 2021. Under the American Rescue Plan, employers are able to provide such leave to employees and receive a tax credit.
The Philadelphia COVID Leave is mandatory and effective as of March 29, 2021. The Code is clear that when an employer provides paid leave under the FFCRA, it will run concurrently with the Philadelphia COVID Leave.
It behooves employers to opt-in for the FFCRA until September 30, so that any paid leave provided during this time will be eligible for a tax credit.
Generous Employer Exception
The Leave Law provides an exception for “Generous Employers.” If an employer provides 160 hours or more of paid time off in 2021, even if it is not designated as sick leave, that business does not need to provide more leave.
With that being said, prudent employers will opt-in for the FFCRA to obtain the tax credit. Employers should consult with counsel regarding the proper documentation needed under the FFCRA.
Notice
The Code is clear, Philadelphia employers must provide notice to all employees using the City Notice Form. This notice can be provided at the physical workplace, or in the event the employee is teleworking, the notice must be sent via e-mail or a “conscious posting in the web-based platform.”