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 February 28, 2023, Philadelphia, Pennsylvania’s Department of Labor (PDOL) published regulations concerning three distinct types of job-protected paid leave employers must provide under the Promoting Healthy Families and Workplaces Ordinance (PHFWO). This is the third iteration of what PDOL labels its “supplemental regulation” of the PHFWO. Below we briefly recap the history of these three paid leave requirements and highlight notable changes, or clarifications, that the most recent rules provide.
Philadelphia Paid Leaves at a Glance. In this article we will discuss three distinct paid time off requirements that may apply in Philadelphia: 1) Paid Sick and Safe Time (and how it operates during COVID-19); 2) COVID-19 Paid Sick Leave; and 3) Pool & Healthcare Employee Pay & Benefits Continuation (during public health emergencies like COVID-19). As enacted originally, the PHFWO required employers to provide paid (or unpaid) leave that covered employees can use for “sick” or “safe” time (PSST) reasons. In response to COVID-19, Philadelphia made both temporary and permanent changes to the PHFWO. It enacted three temporary additions that require certain employers to provide additional paid sick leave specifically for COVID-19 related reasons (COVID Paid Sick Leave); the first temporary addition was in effect during the last months of 2020, the second was in effect for most of 2021, and the most recent has been in effect since March 2022 and will remain in effect through December 2023. Additionally, Philadelphia created permanent additions requiring employers to provide pay continuation to certain healthcare employees but only during public health emergencies (Pool & Healthcare Employee Pay & Benefits Continuation).
On March 16, 2020, PDOL released its first supplemental regulation that solely addressed paid sick and safe time (PSST) standards during COVID-19. A few months later, on November 13, 2020, the department issued its second supplemental regulation that addressed PSST during COVID, the newly enacted 2020 COVID paid sick leave requirements, along with the also newly enacted healthcare employee pay continuation standards. Although there was a 2021 COVID paid sick leave requirement, which was different from the 2020 law, PDOL did not issue regulations concerning the 2021 law. Most recently, on February 28, 2023, PDOL released the third supplemental regulation, which, in addition to rescinding the first and second supplemental regulations, revised the PSST during COVID and healthcare employee pay standards and provided guidance concerning the 2022-23 COVID paid sick leave requirements.
COVID-19 Paid Sick Leave
Because there we no regulations issued for nearly a year, some employers might have struggled to interpret the law. For those who looked to prior interpretations of a previous version of the law, many of the provisions in the most recent regulations will look familiar. Additionally, the latest regulations provide some insight into provisions that did not exist in previous versions of the law.
Covered Employers: The requirements apply to employers with 25 or more employees, but the law does not describe how to calculate business size. The regulations make clear that employers count covered employees only, i.e., individuals who work for them after March 9, 2022 who work in Philadelphia, normally work in Philadelphia but currently telework from another location due to COVID-19, or work from multiple locations or from mobile locations and 51% or more of their work time is in Philadelphia.
Covered Uses: One reason employees can use COVID-19 paid sick leave is when a public official or public health authority, a health care provider, or an employer determines that the presence of the employee or a family member on the job or in the community would jeopardize others’ health because of the individual’s exposure to COVID-19 or because the individual is exhibiting symptoms that might jeopardize others’ health regardless of whether the individual was diagnosed with or tested positive for COVID-19. The regulations expand on the scenarios when this reason for leave could apply:
Being subject to a determination by a public official or public health authority with jurisdiction (including a Federal, State, or local quarantine or isolation order), advice given by a Health Care provider, or a direction given by the COVID-19 Employer related to the public health emergency that: is (i) applicable to the type of business or work the employee engages in; or (ii) specific to the employee because the employee’s presence on the job or in the community would jeopardize the health of others because of the employee’s exposure to COVID-19 or because the employee is exhibiting symptoms of COVID-19; either of which [applies] regardless of whether the employee has been diagnosed with COVID-19.
Additionally, the regulations describe an event that would not qualify: “a business closure that is not specifically for the purpose of quarantine or isolation of the individuals working at the business either because of personal exposure or symptoms, or community spread.”
Generous Employer Exception: Under the law, employers can comply via an existing policy, and need not provide additional COVID-19 paid sick leave, if they provided 120 hours or more of paid time off in 2022, regardless of whether that leave was designated as sick leave, if employees could use that leave for the same purposes and under the same conditions the law requires. The amount drops to 112.5 hours for employers that operate on a 7.5-hour workday and consider 37.5 hours per week to be full time.
Per the regulations, employers must immediately make this 120 (or 112.5) hours of leave available. The regulations allow borrowing leave if the amount of time the employee accrued during the benefit year would not otherwise reach 120 (or 112.5) hours. Additionally, the regulations provide that the law’s requirements are met so long as the employer adopts a qualifying policy, regardless of when it was adopted.
Voluntary COVID-19 Paid Leave Policy: The law also allows employers to meet their obligations via a voluntary policy they adopted in response to COVID-19 (as many did). Essentially, the law allows employers to offset any leave employees might be entitled to under the law by an amount of leave they provide voluntarily to the employee under such a policy. The regulations provide, however, that to qualify the policy must not reduce, and cannot have reduced, any other leave benefit balances.
Unused Leave When Employment Ends: Generally, employers need not cash out the balance of any unused COVID-19 paid sick leave when employment ends. The regulations, however, provide that if an employee’s termination or other involuntary separation coincides with a time when the employee is entitled to use leave, or a time an employer knows the employee would be entitled to use such leave, it would be considered unlawful interference to end employment at that time.
PSST During COVID-19
The PHFWO requires employers to provide covered employees with up to 40 hours of sick leave per year. Whether that leave is paid or unpaid depends on how many covered employees an employer has: 10 or more employees who work in Philadelphia for 40 or more hours per year (paid); 9 or fewer (unpaid).
What’s Gone (Covered Uses). PDOL has revised examples of what it considers to be preventative medical care – a covered PSST use – to no longer involve absences connected to:
- An employee or family member having a greater risk of harm than the general population if they contact COVID-19 (e.g., compromised immune system, self-quarantining due to a healthcare professional’s recommendation).
- Self-quarantining for two weeks after returning to the United States after travelling to certain countries.
What’s New (Covered Uses). In the latest regulations, preventative medical care also includes an employee or family member receiving a COVID-19 test and/or receiving or recovering from a COVID-19 vaccine (including a booster).
What’s Changed (Covered Uses & Documentation). The prior regulations allowed PSST use if an employee or family member needed to self-quarantine for two weeks for various reasons. Under the most recent version, employees can still use PSST to self-quarantine, but there no longer is a two-week reference, and the action must be recommended by a healthcare provider pursuant to current recommendations from the Philadelphia Department of Public Health or the U.S. Centers for Disease Control.
Additionally, a “local public health department” has been added to a list of other officials (governor, state health secretary, mayor, local health commissioner) who could require residents of certain Pennsylvania areas not to travel when travel is necessary to report to work, thereby resulting in an employee or family member needing to self-quarantine.
The biggest change, however, concerns rules about when employers can request documentation to substantiate a need for leave, and what counted as “reasonable” documentation. Under the first and second set of regulations, employers could not require a note from a healthcare professional. The third set of regulations, however, merely encourages employers not to require such a note. The most recent rules also, to a degree, revert to the standards in the first set of regulations when it comes to what constitutes “reasonable” documentation:
A public statement from a government official, the Philadelphia Department of Public Health, or the CDC, provided that an employer may require a signed statement from an employee affirming that the conditions described in such public statement apply to the employee or the family member of the employee.
With respect to an employee who is out of the office as a result of the physical illness or health condition involving a fever, dry cough, or shortness of breath or other respiratory illness of such employee or such employee’s family member known to be symptoms of COVID-19, a signed statement from the employee affirming that the relevant conditions apply.
Pool & Healthcare Employee Pay & Benefits Continuation
This Philadelphia law requires employers that provide healthcare services and use the services of pool or healthcare employees to pay those workers for lost wages and medical expenses if they contract a communicable disease during a pandemic or epidemic affecting Philadelphia such as COVID-19.
Covered Employers: Although it is part of the PHFWO, and, generally, that ordinance applies to all employers, the regulations provide that the pool and healthcare employee pay requirements apply only if an employer has a sufficient number of employees to be subject to the paid sick and safe time requirements: 10 or more covered employees employed for at least 40 weeks in a calendar year in Philadelphia.
The regulations now contain a definition of “healthcare services”:
Any inpatient or outpatient medical or behavioral health, dental, nursing, medical first responder, pharmacological, assisted living residence, intermediate care, adult daycare, long term care facility, acupuncture, audiology, drug and alcohol, hearing aid, chiropractic care, naturopathic care, occupational therapy, physical therapy, athletic training as defined in Second Amendment to the Emergency Regulation Governing the Control and Prevention of COVID-19 Mandating Vaccines For Healthcare Workers and in Higher Education, Healthcare, and Related Settings, optometry, ophthalmology, or speech language pathology services.
Additionally, the regulation provides that, to be covered the employer must engage covered workers at a “healthcare organization,” which is defined as “Any entity, or any portion of a larger entity, that operates with the primary purpose of providing health care services to individuals in an in-person setting.” The regulations go on to state:
In identifying a portion of an entity that constitutes a Health Care Organization for this purpose, the entity shall identify (1) those employees whose primary purpose is to provide in-person health care services; and (2) any employees who provide direct in-person support for those employees whose primary purpose is to provide in-person health care services. Any portion of a larger entity that performs remote work and does not perform in-person medical services does not constitute part of a health care organization.
Covered Employees: The regulations provide that pay and benefit continuation standards apply only to covered pool and healthcare employees who work in person. Accordingly, the requirements do not apply to employees who telework only. Additionally, the regulations repeat the ordinance’s requirement that individuals do not qualify unless they are a “covered” employee, i.e., they worked at least 40 hours within the prior 3 months.
Amount of Leave: The law does not limit how long an employee can be absent. Instead, it requires employers to reimburse an employee for the number of days the employee is unable to work. A new regulation states that employees are presumed to be unable to work due to contracting COVID-19 during their isolation period, which equals the number of days the Philadelphia Department of Public Health recommends for isolation due to COVID-19, which can vary due to an individual’s personal circumstances, e.g., if they are immunocompromised. According to the regulations, the absence could be longer if the employee receives a medical opinion stating that they cannot return to work due to their COVID-19 illness.
Documentation: The law does not speak to documentation employers can request to substantiate the need for leave, but the regulations have always done so. The latest regulations expand upon these standards to say what does not qualify as acceptable documentation: A general direction or recommendation to quarantine (conversely, a written isolation recommendation from a qualified healthcare provider remains sufficient). Additionally, the rules provide an alternative to supplying evidence that an employee contracted COVID-19: a doctor’s note stating that the employee must remain out of work to isolate due to contracting COVID-19.
Using Existing Policies: Some employers were uncertain whether they could comply with these pay continuation requirements by using a pre-existing policy, given that the second set of regulations seemed to suggest they could:
[An employer] that provides paid leave which can be used for the same purposes and under all the same conditions as the  Healthcare Epidemic Leave Benefit, and provides leave in the same or greater amount as required under the applicable City law, has met the obligations of [the law], but only with respect to the applicable leave benefit or benefits that the Employer[’]s existing leave policy meets or exceeds, without respect to the balance of leave  available at the time they request a leave benefit.
The third set of regulations, however, rule out that possibility. They provide that this pay is “in addition to” other benefits an employer may provide: “Health Care Epidemic Leave is in addition to any other leave benefit Health Care Employers provide and no generous employer provisions apply to this leave benefit.”
Depending on how many of these laws potentially apply to a company, there could be a lot to digest. Employers should consider what actions they might want (or need) to take – universally or singularly – in response to the regulations. Though technically called the “third” supplement, online PDOL refers to the supplement as the “final” COVID-19 pandemic paid sick leave regulations, so, even if there is a lot to work through, maybe (fingers crossed) it might be the last review-and-revise exercise employers with Philadelphia operations need to undertake . . . at least when it comes to paid leave, in Philadelphia, during a pandemic.