Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
On December 8, 2020, Pittsburgh’s City Council unanimously passed a Temporary COVID-19 Paid Sick Leave Ordinance, which Mayor Peduto signed on December 9, 2020. The Ordinance, which took effect immediately, requires employers with 50 or more total employees to provide up to 80 hours of paid “COVID-19 Sick Time” in addition to any leave employers provide to their employees, with very limited exceptions. The Ordinance will remain in effect until the public health emergency officially ends.
Employees Covered by the Ordinance
Covered employers must provide COVID-19 Paid Sick Leave to any employees who:
- are currently working, including those who are teleworking, in the City of Pittsburgh;
- normally work in the City of Pittsburgh but are teleworking from another location as a result of COVID-19, or
- spend 51% or more of their time working in the City of Pittsburgh.
Qualifying Reasons for Receiving COVID-19 Sick Time
An employee who meets the eligibility requirements and who has been employed for at least 90 days is entitled to COVID-19 Sick Time if the employee is unable to work (or telework) for any of the following reasons:
- A determination by a public official or public health authority with jurisdiction, a health care provider, or an employer that the employee’s or employee’s family member’s presence on the job or in the community would jeopardize the health of others because of the individual’s exposure to COVID-19 or because the individual is exhibiting symptoms that might jeopardize the health of others, regardless of whether the individual has been diagnosed with COVID-19; or
- The employee has a need (or is caring for a family member who has a need): (a) to self-isolate after being diagnosed with COVID-19 or experiencing symptoms of COVID-19, or (b) to seek or obtain a medical diagnosis, care, or treatment of symptoms of an illness related to COVID-19.
COVID-19 Sick Time Entitlement & Employee Notice Obligations
Employees who qualify for COVID-19 Sick Time are entitled to up to 80 hours of COVID-19 Sick Time if they work 40 or more hours per week. Employees who work fewer than 40 hours a week are entitled to an amount equal to the amount they are otherwise scheduled to work, on average, in a 14-day period. COVID-19 Sick Time is to be made available immediately to eligible employees without any waiting period or accrual. COVID-19 Sick Time may be used intermittently and in the smallest increment that the employer’s payroll system uses to account for absences or use of other time.
Under the Ordinance, employees need only give employers notice of the need for COVID-19 Sick Time as soon as practicable. Employers are expressly prohibited from requiring employees to find someone to replace them if they take COVID-19 Sick Time.
Interaction with the Pittsburgh Paid Sick Days Act & Employer Policies
Employers with 50 or more employees must provide eligible employees with COVID-19 Sick Time in addition to paid sick time that covered employees are entitled to under the Pittsburgh Paid Sick Days Act (PSDA), which can be up to 40 hours per calendar year. In addition, the Ordinance requires employers to make “the maximum amount” of paid sick time under the PSDA (40 hours) immediately available to employees upon hiring if an employee’s requested use “arises directly from COVID-19.” This provision means that if a covered employer uses the calendar year as its leave year for purposes of the PSDA, beginning January 1, 2021, employees are entitled to use up to 40 hours of PSDA paid sick time for COVID-19 reasons even if they have not yet accrued the time.
COVID-19 Sick Time is also in addition to other paid time off that employees receive pursuant to an employer’s policy unless the employer adopted a leave policy after March 13, 2020 that provided employees with additional paid time off during the COVID-19 pandemic. If an employer adopted a leave policy after March 13, 2020 that provided additional paid time off during the COVID-19 pandemic, the employer may generally substitute leave provided under its policy for COVID-19 Sick Time. Notably, the Ordinance also prohibits an employer from changing its paid leave policies that were in effect on December 8, preventing employers from attempting to minimize the financial and operational impact of this new leave entitlement on their operations.
Employees may elect to use COVID-19 Sick Time before using any PSDA paid sick time, and employers may not require an employee to use employer-provided paid time off before COVID-19 Sick Time, unless applicable law requires otherwise. As with paid sick time under the PSDA, employers are not obligated to pay employees for unused COVID-19 Sick Time when an employee’s employment ends.
The Ordinance will remain in effect until the expiration of either the COVID-19 emergency disaster declaration of the Commonwealth of Pennsylvania or the COVID-19 emergency disaster Declaration of the City of Pittsburgh, whichever is sooner. Covered employees can take COVID-19 Sick Time until one week after the termination or suspension of the public health emergency.
Interaction with and Variation from the Families First Coronavirus Response Act
The Ordinance is in some ways more expansive than the federal Families First Coronavirus Response Act (FFCRA), which provides emergency paid sick leave for certain reasons related to COVID-19. The FFCRA applies only to private employers with fewer than 500 employees and covered public employers, and it is currently set to expire December 31, 2020.
For example, unlike the FFCRA, the Ordinance entitles an employee who has a need (or is caring for a family member who has a need) to seek a diagnosis, care, or treatment for COVID-19-related symptoms, to use COVID-19 Sick Time, regardless of whether the employee (or a family member) is has taken any steps to seek a diagnosis, care, or treatment for such symptoms.
Additionally, the Ordinance deems an employer’s determination as to whether an employee’s presence on the job would jeopardize the health of others because of the employee’s exposure to COVID-19 or because the individual is exhibiting symptoms of COVID-19, to be a qualifying reason for leave. With this requirement, a covered employer could be automatically required to provide employees with COVID-19 Sick Time if the employer, for example: (a) sends an employee home if the employee exhibits certain COVID-19-related symptoms, or (b) has a policy in place that prevents employees from working if they had any exposure to COVID-19.
Notably, although FFCRA-covered employers can qualify for full reimbursement of leave provided under the FFCRA through tax credits, employers bear the full cost of providing COVID-19 Sick Time under the Ordinance.
The Ordinance provides that employers may use leave provided under federal or state law to satisfy their obligations under the Ordinance to the extent that the leave is covered both by the Ordinance and either federal or state law, and to the extent that federal or state law allows for concurrent use of such leave. It notes, however, to the extent the leave entitlements under the Ordinance exceed the requirements imposed by federal or state law, employers must provide the leave entitlements required by the Ordinance.
Enforcement & Next Steps
Like the PSDA, the Ordinance will be enforced by the Mayor’s Office of Equity (MOE). The enforcement provisions of the PSDA are incorporated into the Ordinance by reference. Among other things, this means that complaints may be made within six months of an alleged violation and that MOE has authority to impose penalties (including lost wages, benefits and reinstatement) and fines. Under the Ordinance, MOE also has authority to promulgate guidelines and advisory documents and to work with the Allegheny County Health Department to promulgate regulations.
The Ordinance does not address certain topics – for example, whether there are employer notice obligations and what documentation an employer may request of employees seeking COVID-19 Sick Time. Instead, the Ordinance states that it “shall conform to the requirements, procedures and regulations” of the PSDA, except where the Ordinance expressly differs.
Employers should review the Ordinance carefully to ensure they understand their obligations, watch to see if MOE issues any guidance, and contact their employment counsel with any questions.