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The Philadelphia City Council recently passed a third iteration of the Public Health Emergency Leave law that will guarantee up to forty hours of paid sick leave for Philadelphia employees to recover from COVID-19 or avoid exposing others, to care for a family member with COVID-19 or who exhibits symptoms that might jeopardize the health of others, to care for a child whose school or place of care has closed due to COVID-19, or to take time off to obtain a COVID-19 vaccine or booster shot (and address any side effects related to such vaccination).

Which employers are impacted?

The requirements of the bill apply to any employer with at least twenty-five employees. An “employee” is defined as “an individual (i) working for [an] [e]mployer within Philadelphia after the effective date of [the] Ordinance, (ii) who normally works for that [e]mployer within the City of Philadelphia but is currently teleworking from any other location as a result of COVID-19, or (iii) [who] works for that [e]mployer from multiple locations or from mobile locations, provided that 51% or more of such employee’s time is present within the City of Philadelphia.” The bill covers all employees who are expected to physically report to their jobs.

When does the leave begin to accrue?

Leave begins to accrue immediately after the bill is signed into law. In other words, there is no waiting period or accrual requirements.

How much leave must be provided?

If an employee works forty or more hours per week, he or she is entitled to forty hours of leave, unless the employer designates a higher limit. If an employee works fewer than forty hours in a week, “COVID-19 leave shall be provided in an amount equal to the amount of time the [e]mployee is otherwise scheduled to work or actually works on average in a 7-day period, whichever is greater.”

If an employee’s schedule varies from week to week, the bill provides guidance for calculating COVID-19 leave hours based on the average number of daily hours that the employee was scheduled over the past ninety days of work.

When will the law expire?

After enactment, the law will expire on December 31, 2023.

What is the rate of pay?

The legislation requires covered employers to pay employees their regular rate of pay along with their regular benefits.

What about employees who complete the majority of their work responsibilities through telework?

An employer is not required to change existing policies or provide additional paid leave to such teleworking employees if the employer’s existing policy provides such teleworking employees at least eighty hours of paid leave in 2022 and if such paid leave can be used for the same purposes and under all the same conditions as COVID-19 leave.

Is notice required?

Employees are required to “provide notice to their employer of the need for COVID-19 leave as practicable and as soon as feasible,” but only when the need is foreseeable. Employers are required to provide notice of the bill’s provisions to employees within fifteen days after the bill becomes law.

COVID-19 leave is in addition to all other paid leave benefits offered by an employer and not reducible by the amount of any paid leave an employee has previously received. Moreover, employers are prohibited from requiring an employee to use other paid leave available to the employee before the employee is eligible to use COVID-19 leave.

Under the legislation, an employer with a paid leave policy that provides 120 hours or more of paid time off in 2022, whether or not such leave is specifically designed as sick leave and can be used for the same purposes and under the same conditions as COVID-19 leave, is not required to change its leave policy.

According to sources, Mayor Jim Kenney plans to sign the bill soon pending a final review.

Ogletree Deakins’ Leaves of Absence/Reasonable Accommodation Practice Group will continue to monitor and report on developments with respect to the Philadelphia COVID-19 leave legislation and will post updates in the firm’s Coronavirus (COVID-19) Resource Center and on the Leaves of Absence and Pennsylvania blogs. Important information for employers is also available via the firm’s webinar and podcast programs.

Philadelphia’s Public Health Emergency Leave law, as well as state and major locality laws requiring paid leave for COVID-related absences, is shown in Ogletree Deakins’ complimentary COVID-19 Paid Leave maps and covered in greater detail in the firm’s COVID Paid Leave 50-State Survey.

Further information on state and local paid sick leave requirements is available in the firm’s OD Comply: State Leaves subscription materials, which are updated and provided to OD Comply subscribers as the laws change.


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Leaves of Absence/Reasonable Accommodation

Managing leaves and reasonably accommodating employees can be complex, frustrating, and expose employers to legal peril. Employers must navigate a bewildering array of state and federal statutes, with seemingly contradictory mandates.

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