Philadelphia Mayor Signs New “Promoting Healthy Families and Workplaces” Ordinance

On February 12, 2015, Philadelphia Mayor Michael Nutter signed legislation requiring certain employers in the city of Philadelphia to provide up to five days of paid sick leave each calendar year to their employees. The ordinance, titled “Promoting Healthy Families and Workplaces,” goes into effect on May 13, 2015.

Under the ordinance, employers in Philadelphia that employ 10 or more persons must provide paid sick time to employees who work within the geographic boundaries of the City of Philadelphia for at least 40 hours in a year. Employers are not required to provide paid sick time to independent contractors, seasonal workers, adjunct professors, employees hired for a term of less than six months, interns, pool employees, state and federal employees, and employees covered by a bona fide collective bargaining agreement. Employers that already provide employees with as much (or more) paid sick time and for the same purposes and under the same conditions as provided by the ordinance are not required to provide additional paid sick time.

Accrual and Use

Employees accrue a minimum of 1 hour of sick time for every 40 hours worked in the City of Philadelphia. Employees who are exempt under the Fair Labor Standards Act will be assumed to work 40 hours in each workweek, unless their normal workweek is less than 40 hours, in which case sick time accrues based upon their normal work schedule.

All employees who are not entitled to paid sick time under the ordinance (i.e., employees that work for an employer with less than 10 employees) will accrue unpaid sick time under the same conditions as set forth above.

Employees will begin to accrue paid sick time as of May 13, 2015, the effective date of the ordinance. Those hired after the effective date of the ordinance begin accruing paid sick time on their first day of employment. However, employees may not use their accrued paid sick time until their 90^th day of employment. Employees may carry over unused paid sick time to the following year, unless the employer provides at least 40 hours of paid sick time at the beginning of the calendar year. However, employees may not use more than 40 hours of paid sick time in a calendar year, unless the employer chooses to provide a higher limit.

Employees may use paid sick time for:

• an employee’s own mental or physical illness, injury, or health condition; an employee’s need for medical diagnosis, care, or treatment of a mental or physical illness, injury, or health condition; an employee’s need for preventive medical care;

• the care of a family member (with an expansive definition of “family member”) with a mental or physical illness, injury, or health condition; care of a family member who needs medical diagnosis, care, or treatment of a mental or physical illness, injury, or health condition; care of a family member who needs preventive medical care; or

• absences necessary due to domestic abuse, sexual assault, or stalking, provided the leave is to allow the employee to obtain, for the employee or the employee’s family member:
  • medical attention needed to recover from physical or psychological injury or disability caused by domestic or sexual violence or stalking;
  • services from a victim services organization;
  • psychological or other counseling;
  • relocation due to the domestic or sexual violence or stalking; or
  • legal services or remedies, including preparing for or participating in any civil or criminal legal proceeding related to or resulting from the domestic or sexual violence.

Requesting and Taking Leave

Employees may request paid sick time orally or in writing. Additionally, employees may take paid sick time in minimum increments of one hour or the smallest increment of time the employer uses to account for absences (whichever is smaller). Employees must give notice to their employer whenever possible. Additionally, employers may require the employee to provide reasonable documentation supporting the need for leave of more than two consecutive days. However, employers cannot require that employees search for and find a replacement as a condition for using paid sick time. Finally, employees who have exhausted their paid sick time may take unpaid sick time to care for themselves or a family member under certain circumstances related to domestic abuse, sexual assault, or stalking.

Notice, Record Retention, and Impact on Existing Policies

Employers must supply a notice to employees of their rights under the ordinance or display a poster (in a form to be provided by the city) in a conspicuous and accessible place. Additionally, employers must include the same information in any employee handbook that is distributed to employees. Furthermore, employers must keep records documenting the hours worked, the sick time taken, and payments made to employees for paid sick time and maintain these records for two years.

Enforcement and Protections

An employee or other person alleging a violation of the ordinance must first file a complaint with an agency to be designated by the mayor within a year of the date that the person knows or should have known about the violation. The agency will investigate, make attempts to mediate, and, if necessary, impose penalties and fines for violations. Moreover, aggrieved individuals may file a civil action after receiving notice of the agency’s final decision, or 180 days after filing the complaint if no final decision has been rendered. Damages available in a civil action include unpaid sick time, other lost wages, liquidated damages, and reasonable attorneys’ fees.

The ordinance broadly prohibits retaliation against an employee who: (1) alleges that his or her rights have been violated; (2) opposes any policy, practice, or act made unlawful under the ordinance; or (3) otherwise participates in the investigation or prosecution of any alleged violation of the ordinance. In fact, the ordinance provides a rebuttable presumption of unlawful retaliation whenever an employer takes any adverse action against an employee within 90 days of such protected activity. Finally, employers are prohibited from considering sick time taken under the ordinance when taking disciplinary action.

Preparation

Prior to May 13, 2015, employers should review and, if necessary, update, their sick time policies to ensure that they are compliant with the ordinance. Even employers that currently provide employees with as much (or more) paid sick time should review their policies to ensure that they make paid sick time available to employees for the same purposes and under the same conditions as provided by the ordinance.

Additional Information

Should you have any questions regarding the ordinance or its impact on your workplace, please contact the authors, the Ogletree Deakins attorney with whom you normally work, or the Client Services Department at clientservices@ogletreedeakins.com.