February 12th was a pretty busy day in Philadelphia. In all the hoopla over the announcement that the Democratic National Convention will be coming to Philly in 2016, you may have missed another announcement that will have a far larger impact on Philadelphia employers–Philadelphia has become the latest city to require employers to provide paid sick leave to their employees. In doing so, Philadelphia joins 16 other cities, including New York, Washington DC, Portland and Seattle, and three states–California, Connecticut and Massachusetts, in requiring paid sick leave. Other states, including New Jersey, are considering enacting similar laws and President Obama has called on Congress to enact paid sick leave at the federal level.
The Promoting Healthy Families and Workplaces Ordinance (the Ordinance) will become effective on May 13, 2015. It applies to businesses that employ 10 or more full time, part time or temporary employees (and some chain establishments with less than 10 employees). It requires those businesses and employers to provide paid sick leave for all employees who work in the City of Philadelphia for at least 40 hours in a calendar year. Employers are required to provide covered employees one hour of paid sick leave for every 40 hours worked, up to a maximum of 40 hours per year. The Ordinance excludes independent contractors, seasonal employees, adjunct professors, employees hired for a term of less than six months, employees covered by a collective bargaining agreement and other limited exceptions. It is estimated that the Ordinance will cover over 200,000 workers.
Covered employees will start accruing sick time on May 13, 2015. Those who are recently hired can use the accrued sick time 90 days after their initial hire date. Once accrued, the sick time can be used by an employee for their own care or care of a family member for (1) diagnosis, care or treatment for an existing medical condition; (2) preventative care; or (3) issues (both medical and legal) related to the employee being a victim of domestic violence, sexual assault or stalking. It is important to note that the definition of “family member” under the Ordinance is much broader than the definition under the federal Family and Medical Leave Act (FMLA) and includes children, parents, step parents, parents of employee’s spouse, grandparents, grandchildren, siblings, spouses of siblings, persons to whom the employee is married under state law, and “Life Partners” (as defined in other sections of the Philadelphia Code). Employees must provide “reasonable advance notification” if the need to use sick leave is “foreseeable.” If an employee is out for more than two consecutive days, the employer may require reasonable documentation that the sick leave has been for a reason covered by the Ordinance.
Employers must also allow employees to “carry over” accrued but unused sick time, unless the employer provides at least 40 hours of sick time at the beginning of the following calendar year. In other words, the Ordinance requires only 40 hours per year and an employer is not forced to allow an employee to carry over unused hours in excess of the forty hour requirement. The Ordinance does not impose additional paid sick time requirements if the employer already provides employees with paid sick leave or other paid leave policies, such as paid time off (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. Employers are not required to pay out unused sick leave to employees at the time of termination.
The Ordinance also requires employers to distribute individual written notices to all eligible employees, or to display a poster regarding the rights guaranteed by the Ordinance in a conspicuous and accessible location in the workplace. Those employers with employees who do not speak English as their first language may also be required to provide the notice in any other language that is the first language spoken by at least 5% of the workforce. In addition, employers are required to maintain records documenting hours worked and sick time taken, and to retain those records for two years. As with most employment laws, the Ordinance prohibits retaliating against employees who exercise their rights under the Ordinance.
How Should Employers Prepare?
Employers are encouraged to carefully review their existing paid time-off policies to make sure that they comply with the Ordinance. Since “family members” are defined more broadly than in existing leave laws, such as the FMLA, and since the Ordinance includes coverage for domestic violence, sexual assault and stalking, it is likely that existing paid time off policies will need to be modified. Employers should also review their record-keeping practices to make sure that the information collected and maintained is sufficient to meet the requirements of the Ordinance. In addition, employers must train their human resources personnel, supervisors and managers on the Ordinance’s requirements and definitions. Finally, once the poster is released by the City, employers must either post it in a conspicuous place or provide covered employees with written notice of their rights under the Ordinance.
Need help complying with this or the other multitude of local, state and federal employment laws? Contact us. We are here to help!
Julie Kinkopf, Esquire is principal of Kinkopf Law LLC and has been counseling businesses of all sizes on employment and general business matters for over 15 years. Ms. Kinkopf is former General Counsel of a medical imaging company and has extensive experience representing businesses in state and federal court cases involving employment matters, contracts and commercial disputes. She also helps businesses develop sound employment practices designed to avoid litigation and government audits. Ms. Kinkopf represents employers before various governmental agencies as well as in state and federal courts in post-employment litigation, including discrimination, retaliation, pay disputes and non-compete/trade secret matters. More information may be found at www.kinkopflawfirm.com.
Disclaimer: The contents of this post are for informational purposes only, are not legal advice and do not create and attorney-client relationship.
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