Philadelphia Employers Must Now Comply With the Philadelphia Paid Sick Leave Law

Philadelphia employers must provide employees with paid sick leave and notice of their rights under the city’s paid sick leave law, the “Promoting Healthy Families and Workplaces” ordinance, which took effect on May 13, 2015.

Shortly after this law was passed in February 2015, the Pennsylvania Senate passed a bill (SB 333) prohibiting individual cities such as Philadelphia from enacting their own sick leave laws. This Pennsylvania bill, which is now before the Pennsylvania House, would strike down Philadelphia’s new sick leave law if it is enacted. It is unclear, however, whether this Pennsylvania bill will ultimately become a law. Philadelphia employers should therefore ensure their polices and practices comply with the new sick leave law.

The following provides an overview of employees’ rights and employers’ obligations under Philadelphia’s new sick leave law.

Covered Employers and Employees.

This law applies to nearly all private Philadelphia employers. However, if an employer employs fewer than ten employees for at least 40 weeks in a calendar year, the employer will not be required to provide its covered employees with paid sick time, and will only be required to provide the sick time as unpaid leave. (The law contains specific information regarding the method for determining the number of employees employed by a Philadelphia employer).

Employees who perform work in Philadelphia for at least 40 hours in a year are covered by the law. Certain categories of workers, however, are specifically excluded from coverage, including: independent contractors, seasonal workers (i.e., a person who has been hired for a temporary period of not more than sixteen weeks during a calendar year), adjunct professors, employees hired for a term of less than six months, interns (who are narrowly defined in the sick leave law), pool employees (i.e., a health care professional, other than an employee of a temporary placement agency, who works only when he or she indicates that he or she is available for work and who has no obligation to work when he or she does not indicate availability), state and federal employees, and employees covered by a bona fide collective bargaining agreement.

Accrual of Sick Time.

Effective May 13, 2015 (or the employee’s hire date if later), employees will accrue sick time at the rate of one hour of sick time for every 40 hours worked in Philadelphia, up to a maximum of 40 hours of sick time in a calendar year. Employees may begin using paid sick time on the 90th calendar day following the start of their employment.

Employees must be permitted to carry over any accrued, unused sick time to the following calendar year, unless the employer provides at least 40 hours of sick time at the beginning of each calendar year. An employer may cap the amount of sick time an employee may take in any calendar year at 40 hours. Employees are not entitled to payment for unused, accrued sick time in connection with a termination of employment.

Accrued sick time may be used in the smaller of: (1) hourly increments; or (2) the smallest increment that the employer’s payroll system uses to account for absences or use of other time.

If an employer’s policies provide an amount of paid leave (e.g., vacation days, sick days, short-term disability benefits, floating holidays, parental leave, personal days, or PTO) (a) that is sufficient to meet or exceed the sick time accrual requirements in the law, and (b) may be used for the same purposes and under the same conditions as sick time under the law, the employer will not be required to provide additional sick time to comply with the law.

Permissible Sick Time Purposes.

Sick time provided under the law can be used for the following purposes:

for an employee’s mental or physical illness, injury, or health condition, or need for medical diagnosis, care, or treatment of a mental or physical illness, injury, or health condition, or for preventive medical care;
to care for an employee’s “family member” with a mental or physical illness, injury, or health condition, or who needs medical diagnosis, care, or treatment of a mental or physical illness, injury, or health condition, or needs preventive medical care; or
for an absence 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, services from a victim’s services organization, psychological or other counseling, relocation due to the domestic or sexual violence or stalking, or legal services or remedies.

For purposes of this law, a “family member” is defined broadly as: (a) a biological, adopted or foster child, stepchild or legal ward or a child to whom the employee stands in loco parentis; (b) 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; (c) a person to whom the employee is legally married under the laws of Pennsylvania; (d) a grandparent or spouse of a grandparent; (e) a grandchild; (f) a biological, foster, or adopted sibling or spouse of a biological, foster or adopted sibling; or (g) a life partner (as defined under the Philadelphia Code).

Documentation of the Need for Sick Time.

For sick time of more than two consecutive days, an employer may require reasonable documentation that the sick time was used for a purpose set forth in the sick leave law. The law: (1) addresses the specific documentation that may be required based on the reason sick time was used; and (2) explains that an employer may not require an employee to provide documentation explaining the nature of the illness or medical condition of the employee or a covered family or the details of the domestic abuse, sexual assault or stalking that necessitated the leave.

Notice of Need for Leave.

Employees must provide advance notice of the need for sick time when the need for sick time is known to the employee in advance, such as for a scheduled appointment with a health care provider. Employees must also make a reasonable effort to schedule the use of sick time in a manner that does not unduly disrupt the employer’s operations. For all other absences, an employee must notify the employer before the start of the employee’s scheduled work hours, or as soon as practicable if the need arises immediately before or after the employee has reported for work.

Employer Notice Requirements.

Employers must notify employees: (1) that they are entitled to sick time, of the amount of such sick time, and the terms of its use guaranteed under the law; and (2) that the law prohibits retaliation against employees who request or use sick time and provides that each employee may file a complaint or bring a civil action if required sick time is denied by the employer or the employee is retaliated against for requesting or taking sick time.

Employers must include this information in any employee handbooks that are distributed to employees. Additionally, employers must notify employees of these rights by: (1) providing individual notices to employees; or (2) displaying a poster in a conspicuous and accessible place in each establishment where such employees are employed. Such notice or poster must be displayed in English and in any language that is the first language spoken by at least 5% of the employer’s workforce. The Managing Director’s Office for the City of Philadelphia has published a poster that employers may use to fulfill this requirement. This poster is available on the Managing Director’s Office’s website, at: http://www.phila.gov/MDO/Documents/Sick%20leave%20flyer%204%2023%2015.pdf. (This poster is currently only available in English. Employers should continue to check this website for versions of this poster in other languages).

Recordkeeping.

Employers must keep records documenting the hours worked by employees, sick time taken by employees and payment made to employees for the sick time. These records must be retained for two years. They must also be made available to the government agency enforcing the law in certain circumstances. If an issue arises as to an employee’s entitlement to sick time under the law, and the employer does not maintain or retain adequate records documenting hours worked by the employee and sick time taken by the employee or does not allow the agency enforcing the law reasonable access to such records, it will be presumed under the law that the employer has violated the law, absent clear and convincing evidence to the contrary.

Protection Against Retaliation and Discrimination.

An employer cannot retaliate or discriminate against an employee because the employee has exercised rights protected under the paid sick leave law, including using sick leave, filing certain complaints, cooperating with certain investigations, and informing individuals of their rights under the law.

Employers also may not maintain an absence control policy that counts sick time taken under the law as an absence that may lead to or result in discipline, discharge, demotion, suspension, or any other adverse action.

Additionally, the law provides that there is a rebuttable presumption of unlawful retaliation if an employer discharges, suspends, demotes, or takes other adverse action against a person within 90 days of when that person: (1) files a complaint with an appropriate government agency or a court alleging a violation of the law; (2) informs any person about an employer’s alleged violation of the law; (3) cooperates with certain investigations or prosecutions of alleged violations of the law; or (4) opposes any policy, practice, or act that is unlawful under the law.

Next Steps.

Philadelphia employers should ensure:

that they have conspicuously posted the poster published by the Managing Director’s Office regarding employees’ rights under the sick leave law (or otherwise distributed it to employees) and updated any employee handbook policy to include the necessary information regarding employee’s rights under the law;

that employees may accrue and take sick leave as required under the law (if such leave is not already provided under the employer’s policies in the manner required under the law), and their employment policies comply with the law;

that supervisors and other staff members responsible for administering sick leave are aware of employees’ rights to sick leave under the law and the prohibition of discrimination and retaliation under the law; and

that they have implemented recordkeeping procedures to properly track employees’ sick time, in accordance with the new law.

Please do not hesitate to contact any of our attorneys if you have any questions regarding this new law.