Philadelphia Enacts New COVID-19 Paid Sick Leave Law for 2022

On March 10, 2022, Philadelphia Mayor Jim Kenney signed a new ordinance requiring Philadelphia employers with more than 25 employees to provide 2022 COVID-19 supplemental paid sick leave (PH SPSL). The law took effect on March 9, 2022 and expires on December 31, 2023. This new ordinance for 2022 is the third time that a COVID-19 emergency paid sick time bill was enacted in Philadelphia – two previous versions were passed in 2020 and 2021 but expired due to sunset provisions. Read on for more information.

Covered Employers

Employers in Philadelphia with 25 or more workers are covered under PH SPSL and must comply with the ordinance requirements.

Eligible Employees

Employees working for a covered employer are eligible for PH SPSL provided they:

• work in Philadelphia;

• normally work in Philadelphia but are currently teleworking from any other location as a result of COVID- 19; or

• work from multiple locations or mobile locations but spend 51% or more of the time working in Philadelphia.

Qualifying Reasons for PH SPSL

PH SPSL provides paid leave for an employee who is unable to work for the following COVID-19 related qualifying reasons:

1. A determination by a public official or public health authority having jurisdiction, a health care provider, or an employer that 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 that might jeopardize the health of others, regardless of whether the employee has been diagnosed with or has tested positive for COVID- 19;

2. To care for a family member¹ of the employee due to a determination by a public official or health authority having jurisdiction, a health care provider, or the family member's employer that the presence of the family member on the job or in the community would jeopardize the health of others because of the family member's exposure to COVID-19 or a determination by the employer that the employee is a danger to the health of others because they are exhibiting symptoms that might jeopardize the health of others, regardless of whether the family member has been diagnosed or having tested positive with COVID-19;

3. An employee’s need to self-isolate or care for oneself as result of exposure to, symptoms or diagnosis of COVID-19, including seeking or obtaining medical diagnosis, care, or treatment if experiencing symptoms of an illness related to COVID-19;

4. An employee’s need to care for a family member as result of the family member’s exposure to, symptoms or diagnosis of COVID-19, including seeking or obtaining medical diagnosis, care, or treatment for the family member if experiencing symptoms of an illness related to COVID-19;

5. An employee’s need to care for a child if the school or place of care is closed, or whose childcare provider is available, due to precautions taken in response to COVID-19;

6. An employee’s need to receive a COVID-19 vaccination, including a booster, or to recover from any side effect related to vaccination.

PH SPSL must be provided to employees immediately with no waiting period. Employers may request that an employee submits a self-certified statement reflecting that the PH SPSL was used for the qualifying reasons listed above.

Employers are not permitted to require an employee using PH SPSL to search for or find a replacement worker for coverage.

PH SPSL Amount

The maximum amount of PH SPSL that employees can receive is 40 hours for full-time employees, unless the employer provides a higher amount. For part-time employees, PH SPSL equals the amount of time the employee is regularly scheduled to work or actually works on average over a seven-day period, whichever is higher, unless the employer provides a higher amount. For employees with variable schedules, PH SPSL time is calculated by the average number of hours in a seven-day period the employee was scheduled to work over the past 90 days of work, including any leave hours taken by the employee, multiplied by seven.

Employees may use PH SPSL in hourly increments or in the smallest increment that an employer's payroll system uses to account for absences or use of other time.

Compensation for PH SPSL

Employees must be compensated for PH SPSL at the regular rate of pay and with the same benefits, including health care benefits, for the workweek in which the employee takes PH SPSL provided that the amount does not fall below the Pennsylvania minimum wage.

Existing PTO Policies

Generally, employers cannot require an employee to use any other paid leave provided by the employer before the employee uses PH SPSL or in lieu of PH SPSL.

However, employers may use existing paid time off (PTO) policies to satisfy PH SPSL requirements under certain circumstances outlined below:

• Generous PTO Policy: Employers are not required to provide additional PH SPSL if their PTO policy already provides 120 hours of PTO for employees in 2022 that can be used for the same qualifying reasons and under the same terms and conditions as set forth under the PH SPSL ordinance.

• Teleworkers: For employees who complete the majority of their work duties through telework, employers are not required to provide additional PH SPSL if their PTO policy already provides 80 hours of PTO for teleworking employees in 2022 that can be used for the same qualifying reasons and under the same terms and conditions as set forth under the PH SPSL ordinance.

• COVID PTO Policy: Employers with a PTO policy that already provides an equal amount of supplemental paid time specifically for COVID-19 purposes for employees in 2022 are also not required to provide additional PH SPSL.

Important PH SPSL Dates

The law took effect on March 9, 2022, and expires on December 31, 2023.

Employer Next Steps

Employers are advised to review the recommended next steps below and act accordingly:

• Leave policy: Prepare a revised leave policy in light of PH SPSL for 2022 if an existing leave policy does not satisfy the limited circumstances outlined above.

• Leave tracking processes: Ensure leave tracking processes are updated, as necessary.

• Model notice: Post the PH SPSL model notice provided by the City in a conspicuous and accessible workplace location for employees. For teleworkers, email the notice or post it to a company portal or web-based platform.

• Employee records: Maintain records relating to employee use of PH SPSL for two years.

Risk Strategies will continue to monitor developments in this area and work diligently to provide our clients with the most up-to-date information.

Family member means:

1. A biological, adopted or foster child, stepchild or legal ward or a child to whom the employee stands in loco parentis
2. A biological, foster, stepparent or adoptive parent or legal guardian of an employee or an employee's spouse or a person who stood in loco parentis when the employee was a minor child;
3. A person to whom the employee is legally married under the laws of Pennsylvania;
4. A grandparent or spouse of a grandparent;
5. A grandchild;
6. A biological, foster, or adopted sibling or spouse of a biological, foster or adopted sibling;
7. A Life Partner as defined under applicable City of Philadelphia regulations.