Statutory Update – Philadelphia, PA COVID-19 Leave, DC PFML Changes

March 25, 2022

COVID-19 Legislation

State and Local

Emergency Paid Sick Leave Updates

Philadelphia, PA

On March 9 the mayor of Philadelphia signed Bill No. 220051-A, resurrecting the city’s Public Health Emergency Leave that expired last summer and renaming it “COVID-19 Leave”. 

Effective Dates: March 9, 2022 through December 31, 2023

Applies to:

• All Employers with 25 or more employees (2021 PHEL applied to employers with 50 or more employees)
• Employees who:

1. work for an employer within Philadelphia after March 9, 2022;
2. normally work within Philadelphia but are currently teleworking from any other location as a result of COVID-19; or
3. work for the employer from multiple or mobile locations, provided that 51% or more of their work time is spent in Philadelphia.

• Excludes construction craft employees who are covered by a collective bargaining agreement between a labor organization and one or more employers engaged in the construction industry.

Reasons for Use: An employee may take COVID-19 Leave if they are unable to work due to one or more of the following 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 whether the employee has been diagnosed with or has tested positive for COVID-19;
2. The employee’s need to:
   1. self-isolate because they are diagnosed with or have tested positive for COVID-19;
   2. self-isolate because they are experiencing symptoms of COVID-19;
   3. seek or obtain medical diagnosis, care, or treatment because they are experiencing symptoms of an illness related to COVID-19;
3. To care for a family member to whom numbers 1 or 2 above apply;
4. To care for a child if the school or place of care of the child has been closed, or the childcare provider of such child is unavailable, due to precautions taken in response to COVID-19;
5. The employee’s need to obtain a COVID-19 vaccination, including a booster, or to recover from any side effects related to the vaccination.

Leave Entitlement:

• Employees who work 40 hours or more per week are eligible for 40 hours of COVID-19 Leave (vs. 80 hours under 2021 PHEL);
• Employees who work fewer than 40 hours per week are eligible for a number of COVID-19 Leave hours equal to the average number of hours worked or scheduled to work, whichever is greater, in a 7-day period;
• Variable schedule employees are eligible for a number of COVID-19 Leave hours equal to 7 times the average number of daily hours that the employee was scheduled over the past 90 days of work, including hours for which the employee took leave of any type.

Pay:

• COVID-19 Leave must be paid at the employee’s regular rate of pay or the state minimum wage, whichever is greater.

Interplay with Other Leaves:

• COVID-19 Leave is in addition to all other paid leave benefits offered by an employer, and may not be reduced by the amount of any paid leave an employee has previously received. In addition, an employer may not reduce the amount of any paid leave a COVID-19 Leave-eligible employee was otherwise entitled to use or accrue under such employer’s existing policies as of March 9, 2022.
• An employer may not require an employee to use other paid leave available to the employee before the employee is eligible to use COVID-19 Leave, unless state or federal law requires otherwise
• Employers who adopted a COVID-19 paid leave policy may substitute that policy for requirements under the Ordinance; however, the employer must provide additional leave where the Ordinance’s requirements exceed the provisions of the employer’s COVID-19 policy available to a particular employee.
• Employers may substitute leave under federal or state COVID-19 paid leave law for its COVID-19 Leave obligations to the extent they coincide and the relevant federal or state law permits concurrent use of paid leave. Employers must provide additional leave if the requirements of this Ordinance exceed the requirements of those laws and as permitted under the federal or state law.
• Employers are not required to change existing policies or provide additional paid leave if an existing company policy provides a minimum amount of paid leave in 2022 that can be used for the same purposes and under all of the same conditions as COVID-19 Leave:
  • Employees who perform the majority of their work through telework: a minimum of 80 hours;
  • All other employees: a minimum of 120 hours*, whether or not this time is specifically designated as sick leave.

* 112.5 hours for employers who operate on a 7.5 hour work day and consider employees working 37.5 hours per week to be full-time.

Job Protection:

• Employees who take COVID-19 Leave are entitled, upon return from leave, to be restored to the position held prior to leave.

Notice to Employees and Recordkeeping:

• A notice must be distributed to all employees or posted conspicuously, in all languages spoken by 5% of the employer’s workforce, within 15 days of the law’s effective date (i.e., by 3/24/22).  The notice may be provided electronically to remote employees or if the employer does not maintain a workplace. A model notice has been posted on the city’s COVID-19 Pandemic Paid Sick Leave Resources webpage.
• Records of hours worked, leave provided and leave used must be maintained for two years.

Collective Bargaining Agreements:

• The Ordinance’s provisions may be waived in a CBA, but only if (a) the waiver is explicitly expressed, (b) the CBA provides comparable benefits, and (c) the agreement is in effect contractually. CBA terms must be implemented bilaterally.
• As noted above, the Ordinance’s requirements exclude construction craft employees who are covered by a CBA between a labor organization and one or more employers engaged in the construction industry.

Please see our side-by-side comparison for more details on each of the Emergency Paid Sick Leave laws.

Non-COVID-19 Legislation

State and Local

Paid Family and Medical Leave Updates

District of Columbia Paid Family and Medical Leave (DC PFML) Changes

In our October 8, 2021 Statutory Update we summarized amendments to the DC PFML program included in the Fiscal Year 2022 Budget Support Act of 2021 (B24-0285/D.C. Act 24-176), signed by the mayor on September 27. In addition to temporary benefit changes, such as the increased maximum duration for medical leave, the introduction of pre-natal leave, and the waiver of the waiting period, the Act outlined a plan for annual review of the program’s solvency and consequent adjustments to benefits and/or the contribution rate.

On March 1 the Office of the Chief Financial Officer certified that current funding allows for enactment of the maximum level of benefits authorized by the Act, as well as a reduction to the employer contribution rate.  With this certification, the following changes will be implemented:

1. Effective July 1, 2022, the employer contribution rate for DC PFML will decrease from 0.62% to 0.26% of wages; and
2. Effective October 1, 2022, leave entitlements will increase to the maximum level outlined in the Act’s schedule.

Permanent removal of the waiting period has been incorporated into budget measures currently under consideration.  In addition, the Department of Employment Services (DOES) will be providing an updated version of the required Employee Notice reflecting the changes above. We will continue to monitor and provide updates.

Please contact your MMA account team members with specific questions about this or other updates, and stay up to date with the latest news and information by subscribing to the MMA ADL blog: https://mma-adl.com/blog/

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