Pittsburgh, Pennsylvania's Paid Sick Days Act will (finally) take effect on March 15, 2020, the effective date triggered when the Mayor's Office of Equity (“MOE”) released guidelines on December 16, 2019. On February 15, 2020, one month before the ordinance's effective date, MOE revised some of its guidelines and released a set of long-awaited Frequently Asked Questions.1 In some respects, employers may welcome the revisions and FAQs. However, challenges remain both for companies that want one policy that also complies with the Philadelphia paid sick leave ordinance and for companies with employees based outside of Pittsburgh who regularly travel through the city.
Complying via an Accrual-Based System: Under the Pittsburgh ordinance, depending on whether an employer has 15 or more or 14 or fewer employees, employees are permitted to accrue no more than 40 or 24 leave hours per year, respectively, unless an employer designates a higher amount. The FAQs explain that the accrual cap functions as both an annual and overall accrual cap. In other words, for employers subject to a 40-hour cap, if at the end of year 1 an employee has 20 accrued leave hours the employee did not use, those 20 leave hours carry over into year 2. In year 2, the employee can accrue an additional 20 hours, at which point accrual will stop because the employee's leave bank will contain 40 hours. When the employee uses leave hours, accrual will resume. If, after hitting the cap in "year 2," the employee uses 20 leave hours, the employee can accrue up to an additional 20 leave hours, at which point the employee will have accrued the maximum of 40 leave hours in year 2 and will have an overall leave bank that contains 40 hours.
This setup, a "maximum bank cap," is one of at least nine different types of approaches to accrual caps the various statutory paid sick leave laws permit employers to use. For example, Philadelphia applies a "hard cap" approach. Using the example above, in Philadelphia, "year 2" accrual would not stop when the leave bank contains 20 carry-over hours and 20 "year 2" hours; instead, the employee could accrue 40 hours in “year 2,” so the employee’s leave bank could contain 60 hours.
Complying via a Frontloading System: Under the Pittsburgh ordinance, when an employer annually frontloads 40 or 24 hours per year, frontloaded leave that remains unused at the end of the year need not carry over to the following year. The original guidelines required, in part, employers that frontload to ensure they also meet the accrual requirements throughout the year. Recognizing that one of the benefits of frontloading is the elimination of the administrative burden of tracking accrual, the revised guidelines remove this requirement.
When Employers Can Request Documentation: Under the Pittsburgh ordinance, employers can request that employees provide documentation to support an absence if employees use leave hours for three or more consecutive days. The original guidelines allowed employers to request documentation earlier if the federal Family and Medical Leave Act (FMLA) requires documentation to be provided. The revised guidelines clarify this provision and explain that employers can request document earlier in accordance with the FMLA, thus recognizing that the FMLA itself does not contain a per se requirement that employees provide documentation for each FMLA-covered absence.
Transferred Employees: Under the original guidelines, if an employee remained employed by the same employer but transferred to a location outside Pittsburgh, the individual would retain, and could use, Pittsburgh leave hours at the new location. The revised guidelines apply this requirement only to transfers within Pittsburgh.
Employees Occasionally Working in Pittsburgh: Under the ordinance, employees must accrue at least one leave hour for every 35 hours worked in Pittsburgh. Additionally, to be a covered employee, the guidelines require an employee to work at least 35 hours in Pittsburgh in a year.
The FAQs explain that employees based outside the city limits are considered to be working in Pittsburgh (and therefore working toward meeting the 35 hours worked coverage threshold and accruing leave) when they regularly drive through Pittsburgh as part of their job duties even if they never stop in Pittsburgh.
The ordinance takes effect March 15, 2020. Employers should review the revised guidelines and FAQs to see whether they affect policies, practices, and procedures. Covered employers also should remember to ensure they have posted the required workplace notice on before March 15, 2020.