Starting on May 13, 2015, companies operating in Philadelphia will be required to provide sick time to employees pursuant to the Promoting Families Workplace Ordinance, which was passed into law on Feb. 12, 2015. Philadelphia now joins the nationwide trend to mandate employer-provided sick leave − Philadelphia is the 17th city to enact such a law, and California, Massachusetts and Connecticut have passed similar laws applicable statewide.
Under the Philadelphia ordinance, full- and part-time employees who work at least 40 hours per year within the geographic boundaries of Philadelphia will accrue paid sick leave at the rate of one hour for every 40 hours worked, up to a maximum of 40 hours per year. Sick leave may be used based on the employee’s own qualifying need or family member’s need for a) the diagnosis, care or treatment of an existing health condition; b) preventative care; or c) medical attention to recover from an injury or disability caused by domestic or sexual violence, which includes stalking. Under the ordinance, an employee is not entitled to use his or her accrued paid sick days until the 90th day of employment.
As is the case in other cities and states, the ordinance is additionally subject to the following provisions:
Employer Coverage
An employer is not required to comply with the ordinance if it employs fewer than 10 individuals for at least 40 weeks in the calendar year. However, chain businesses (defined as establishments doing business under the same trade name in 15 or more locations, regardless of whether they are located in Philadelphia or outside the city) are subject to the ordinance, even if the chain business has fewer than 10 employees within the geographic boundaries of Philadelphia.
Excluded Employees
The following individuals are not covered by the ordinance: independent contractors, seasonal employees, adjunct professors, employees hired for terms shorter than six months, interns, pool employees in the healthcare industry, state and federal employees, and employees covered by bona fide collective bargaining agreements.
Compensation for Sick Time
Employers must compensate paid sick leave at the employee’s regular rate of pay. However, the ordinance does not address situations where an employee performs two different jobs, subject to two different rates of pay, for the same employer. Other sick leave laws − for example, those of San Francisco and California − specifically address such situations.
Carryover and Accrual
The ordinance requires that accrued paid sick leave carry over to the following year of employment, unless the employer provides at least 40 hours of sick time at the beginning of each calendar year. Employers may limit an employee’s use of sick leave in each calendar year to 40 hours, unless the employer chooses to provide a higher limit. Sick leave laws in Connecticut, New York and Massachusetts have nearly identical provisions.
As there is no express provision indicating otherwise, it is unlikely that employers are required to cash out an employee’s accrued, but unused, paid sick time at the end of employment.
Employee Notice and Documentation
An employer must provide sick leave upon the oral or written request of the employee. When the need for sick time is known to the employee in advance (for example, in the case of a doctor’s visit), an employee is required to provide notice and make a “reasonable effort” to schedule the sick leave in a manner that will not interrupt the operations of the employer. The term “reasonable effort” is not defined within the ordinance and is therefore a source of ambiguity. Additionally, an employee is not responsible for finding a replacement to cover work duties during his or her sick leave.
Although it may seem that the ordinance gives employees free reign to take sick leave whenever they please, the employer may request that the employee provide “reasonable documentation” to explain the absence if the employee is sick for two or more consecutive days. However, the ordinance does not delineate any time frame or limit for an employee to provide such documentation.
Unlike other jurisdictions’ sick leave laws requiring an employee to take either a half day or a full day of sick leave at a time, the ordinance allows sick time to be used “in the smaller of hourly increments or the smallest increment that the employer’s payroll system uses to account for absences or use of other time.”
Employer Notice and Posting Requirements
Employers must give notice that employees are entitled to sick leave and must provide terms of its use. Notice may be either written (e.g., employee memos or flyers), or posted in a conspicuous and accessible place in each establishment. If a language other than English is spoken natively by at least 5 percent of employees, then the notice must be provided in that foreign language.
Recordkeeping
Employers must document the hours worked, amount of sick leave taken and any payments for sick time made. If not, there is a rebuttable presumption that the employer violated the law, absent clear and convincing evidence otherwise. An employer must make these records available to the city enforcement agency upon request.
Enforcement
The mayor of Philadelphia will designate an agency responsible for implementing, administering and enforcing the ordinance. Philadelphia’s city solicitor is additionally empowered to bring a civil action to enforce this ordinance, seek injunctive relief and impose a fine on the employer.
Action Steps
Violation of these new statutory requirements can result in significant administrative fines, civil penalties, and awards of attorney’s fees and costs against employers. Employers in jurisdictions that have enacted sick-leave laws should carefully review any sick leave or paid time-off policies, as well as wage statement practices, new-hire paperwork, workplace postings and recordkeeping procedures for their full- and part-time employees in the state. Employers also should consult with legal counsel to ensure compliance with the nuances of the new legislation.
For questions regarding this new law, sick pay in your jurisdiction(s), or assistance with reviewing, revising or drafting compliant policies and procedures, please reach out to your McGuireWoods contact, the authors, or any other members of the McGuireWoods labor and employment group.