Executive Summary: On February 12, 2015, the Philadelphia City Council passed, and Mayor Michael A. Nutter promptly signed into law, the Promoting Healthy Families and Workplaces Ordinance ("Ordinance"). With this Ordinance, Philadelphia becomes the latest in a long list of municipalities, in addition to the states of California, Connecticut, and Massachusetts, which have passed laws mandating paid sick leave for employees.
An Ordinance Seven Years in the Making
Philadelphia was one of the first cities to consider measures for paid sick leave as far back as 2008. In fact, similar measures were vetoed by Mayor Nutter in 2011 and 2013. However, with 16 U.S. cities and three states having some form of paid sick leave, and with President Barack Obama calling on Congress to enact federal sick leave legislation, the Ordinance finally passed on February 12, 2015.
Under the Ordinance, employers with 10 or more employees will need to provide up to one hour of paid sick time for every 40 hours worked by an employee in the city. Employers with fewer than 10 employees will be required to provide unpaid sick leave. The Ordinance applies to employees who work within the geographic boundaries of Philadelphia for at least 40 hours each year. The Ordinance excludes independent contractors, seasonal workers, temporary workers hired for less than six months, adjunct professors, interns, state and federal employees, and employees covered under a bona fide collective bargaining agreement, in addition to other limited exceptions.
Earning and Accrual of Paid Sick Time
Eligible employees will earn one hour of sick time for every 40 hours worked and become eligible to accrue sick time on May 13, 2015. Employees must be employed for at least 90 days before they are eligible to use any accrued paid sick leave. Employees can accrue a maximum of 40 hours of sick time in a calendar year, unless the employer permits more. Employers have the discretion to advance sick time to an employee in lieu of accrual.
Employers must allow employees to carry over all accrued but unused sick time, but the employer may limit the use of sick leave in any single calendar year to 40 hours. Employers are not required to pay employees for unused sick time at the time of termination.
Permissible Uses for Paid Sick Time
Employees are entitled to use their sick time for their own qualifying need, or that of a family member, for (i) diagnosis, care or treatment of an existing health condition; (ii) preventative care; or (iii) issues related to the employee being a victim of domestic violence, sexual assault or stalking. A "family member" is defined under the ordinance to include a:
- biological, adopted or foster child, stepchild or legal ward or a child to whom the employee stands in loco parentis;
- 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;
- person to whom the employee is legally married under state law;
- grandparent or spouse of a grandparent;
- biological, foster, or adopted sibling or spouse of a biological, foster or adopted sibling; and
- Life Partner (as defined in another section of the Philadelphia Code).
This definition is much broader than the definition of "family member" under the federal Family and Medical Leave Act.
Employers may require that paid sick leave be used in "reasonable minimum" increments of an hour or any smaller increment used by the employer to account for absences. Sick time must be provided upon an employee's oral or written request. Employees must provide "reasonable advance notification" if the need to use sick leave is foreseeable, and employers may only request that employees provide reasonable documentation that the paid sick time has been used for a purpose covered by the Ordinance after the employee has used sick time for more than two consecutive days.
Effect on Existing Leave Policies
Employers with sick leave policies that are more generous than the requirements of the Ordinance will not be required to provide additional sick leave. In addition, employers with other paid leave policies, such as PTO, that meet or exceed the accrual requirements of the Ordinance and that permit employees to utilize leave for the same purposes permitted under the Ordinance, similarly do not have to provide additional sick leave.
Notice, Recordkeeping and Anti-Retaliation
As with other sick leave laws, the Ordinance requires employers to provide written notice of an employee's entitlement to sick leave or post a sign (prepared by the city) visible to all employees, and to maintain records documenting hours worked and sick time taken. The Ordinance also prohibits employers from retaliating against employees who exercise their rights under the Ordinance.
What does this mean for Employers?
With respect to employers with employees who perform work within Philadelphia, of course they should review their existing leave policies, ensure compliance with the Ordinance's requirements, and take other preventative measures to guard against failure to notify and retaliation claims. From a big picture perspective, employers need to understand that paid sick leave has gained incredible traction over the last few years. In fact, all but four of the paid sick leave laws currently in effect were passed in 2013 or later. In addition, there is a movement to make paid sick leave a federally legislated mandate as the United States remains one of the few advanced countries that offers no paid sick leave to its employees. Employers not currently affected by a paid sick leave law should carefully monitor any developments at the federal and local level and should prepare themselves for the possibility of mandatory paid sick leave becoming a reality for their operations.