The City of Pittsburgh is expected to enact the new Temporary COVID-19 Emergency Paid Sick Ordinance (the “Ordinance”), which provides Pittsburgh employees with a new entitlement of up to two weeks of paid time off for qualifying absences related to COVID-19. While this legislation may be well intended, it presents potentially significant challenges for employers with Pittsburgh-based workforces that have spent the past several months adapting to what seems like an ever-evolving carousel of federal, state, and local laws enacted in response to the pandemic.
With the federal Families First Coronavirus Response Act (FFCRA) set to expire on December 31, 2020, absent an extension by the federal government, the Ordinance appears to be the City’s effort to provide paid leave rights for qualifying reasons relating to COVID-19.
However, the Ordinance considerably exceeds the FFCRA in the scope of covered employers. All Pittsburgh employers with 50 or more employees (including employers whose employees normally work in the City of Pittsburgh but are now teleworking from other locations as a result of the pandemic) are covered by the Temporary COVID-19 Emergency Paid Sick Ordinance. By contrast, the FFCRA’s coverage was limited to only employers with fewer than 500 employees. As such, many larger employers with a workforce in Pittsburgh that were excluded from the FFCRA’s coverage will now immediately have to take steps necessary to provide for the requisite paid leave benefits. Further, even if an employer was subject to the FFCRA and previously took actions to provide for COVID-related paid leave, those employers should immediately update previously established policies to ensure compliance with the Ordinance.
Under the Ordinance, covered employers must provide covered employees with the following amounts of emergency paid sick leave:
- Employees who work 40 hours or more per week are entitled to 80 hours of paid sick leave.
- Employees who work fewer than 40 hours per week are entitled to an amount of paid sick leave equivalent to the greater of the amount of time they are scheduled to work or the amount of hours actually worked on average in a 14-day period.
- Employees whose schedules vary from week to week are entitled to an amount of paid sick leave equivalent to the average number of hours worked over the past 90 days of work, including hours for which the employee took leave of any type.
The Ordinance also requires covered employers to make available the full allotment of emergency paid sick leave to all covered employees for immediate use, “without any waiting period or accrual requirements.”
The Ordinance applies to all employees who: (a) are working for a covered employer within the City of Pittsburgh after the effective date of the Ordinance; (b) normally work for a covered employer within the City of Pittsburgh but are teleworking from any other location as a result of COVID-19; or (c) work for a covered employer from multiple locations or from remote locations, provided that 51% or more of such employee’s time is spent within the City of Pittsburgh. Covered employees must also be employed by the covered employer for at least 90 days before they are entitled to emergency paid sick leave under the Ordinance.
Significantly, the Ordinance states that the two weeks of emergency paid sick leave time provided thereunder must be in addition to any paid sick leave to which an employee may already be entitled under an employer’s existing policies or other applicable law. There are limited exceptions, namely that employers may substitute leave provided under federal or state law and/or any of their own policies adopted after March 13, 2020, to the extent they provide equivalent COVID-related paid leave rights. However, covered employers are required to provide additional emergency paid sick leave to the extent the requirements of the Ordinance exceed the leave rights provided under the employer’s policies or other applicable law. Additionally, the emergency paid sick leave time provided under the Ordinance must be in addition to the paid sick leave required under the Pittsburgh Paid Sick Days Act, which provides up to 40 hours of paid sick time (see our prior articles here and here). The Ordinance further provides that employees may elect to utilize emergency paid sick leave under the Ordinance before utilizing any other sick leave they may have available, provided that the reason for their absence is a qualifying reason.
To that end, covered employees will be entitled to use emergency paid sick leave under the Ordinance for any of the following qualifying reasons related to COVID-19, provided that they are unable to work in person or telework:
- Determination by a public official or public health authority, a health care provider, or an employer that the employee’s presence on the job or in the community would jeopardize others’ health because the employee is exhibiting symptoms or has been exposed to COVID-19 that might jeopardize the health of others, regardless of whether the individual has been diagnosed with COVID-19.
- Care of the employee’s family member due to a determination by a public health official or health authority, a health care provider, or the family member’s employer that the presence of the family member on the job or in the community would jeopardize the health of others because of the family member’s exposure to COVID-19 or because they are exhibiting symptoms that might jeopardize the health of others, regardless of whether the family member has been diagnosed with the contagious illness.
- An employee’s need to: (i) self-isolate and care for oneself because the employee is diagnosed with COVID-19; (ii) self-isolate and care for oneself because the employee is experiencing symptoms of COVID-19; and/or (iii) seek or obtain medical diagnosis, care, or treatment if experiencing symptoms of an illness related to COVID-19; or
- Care of a family member who: (i) is self-isolating due to being diagnosed with COVID-19; (ii) is self-isolating due to experiencing symptoms of COVID-19; and/or (iii) needs medical diagnosis, care, or treatment if experiencing symptoms of an illness related to COVID-19.
Employers with Pittsburgh employees need to be prepared to handle leave requests under the Ordinance immediately, particularly in light of recent trends at both a local and national level. For example, many Pennsylvania businesses are returning to remote operations in light of Governor Wolf’s November 23, 2020 Mitigation Order in which telework was mandated “unless impossible.” Additionally, the Pennsylvania Department of Health recently issued an Order for Mitigation Relating to Travel mandating that all individuals quarantine following out-of-state travel, unless they receive a proper negative test result or fall under certain limited exceptions. These recent trends and developments, along with the general increase in positive COVID-19 cases reported in Pennsylvania, could predictably lead to an increase in employee absences. It is therefore crucial that employers clarify with their employees the reason for any COVID-19 related absences, and understand the types of absences for which their employees must be paid under the Ordinance.
The Ordinance will take effect immediately upon its enactment, which is expected to happen soon. Pittsburgh City Council passed the Ordinance on Tuesday, December 8, 2020, and has sent it to Mayor Bill Peduto for signature. Given that Mayor Peduto has expressed strong support in favor of the Ordinance, he is expected to sign the Ordinance in the coming days.
Accordingly, all companies with 50 or more employees in Pittsburgh should begin taking immediate action in preparation for the Temporary COVID-19 Emergency Paid Sick Ordinance. Reed Smith’s Pittsburgh-based labor and employment team is closely monitoring developments relating to this legislation and is prepared to assist you and your business with any questions or concerns that might arise.