On February 12, 2015, Philadelphia Mayor Michael Nutter signed into a law a new Ordinance that requires Philadelphia employers of ten or more full or part-time employees to give paid leave to eligible employees for certain purposes. The Ordinance will take effect On May 13, 2015.

Who are eligible employees?

Although all employers with ten or more employees are subject to the Ordinance, not all employees of a covered employer are entitled to paid leave. The Ordinance applies to employees who perform at least 40 hours of service in a year, but exempts from the definition of “Employee” independent contractors, seasonal workers, adjunct professors, employees hired for a term of less than six months, interns, pool employees, State and Federal employees and employees covered by a bon fide collective bargaining agreement. The term “pool employee” has a narrow definition related to the healthcare industry only, and the term “intern” is limited to a student enrolled in an educational institution and only when performing services for that institution.

What are an eligible employee’s rights?

Eligible employees are entitle to accrue and use one hour of paid sick leave for each 40 hours worked in Philadelphia to a maximum benefit of 40 hours of paid leave per calendar year. While there is some inconsistent language in the Ordinance, it appears that employees not eligible for paid sick leave must be given unpaid leave for the purposes of the Ordinance. Hopefully, implementing regulations will answer this question.

Sick time accrual begins for existing employees on the effective date of the Ordinance and for employees first employed thereafter, as of the date employment commences. Exempt employees under the Fair Labor Standards Act are presumed to work 40 hours a week for sick time accrual purposes unless their normal work week is less than that. Employees may begin to use accrued sick leave on the 90th day following commencement of employment, and may carry sick time over to the following year, unless the employer provides at least 40 hours of sick time at the beginning of each calendar year; provided, however, that an employee is not entitle to use more than 40 hours of sick time in any calendar year. Importantly, “sick time” includes unpaid time off for employees who are not eligible for paid sick time. Employers who offer paid sick leave (including vacation days, sick days, short-term disability benefits, floating holidays, and personal paid leave) sufficient to satisfy the requirements of the Ordinance and which may be used for the purposes of the Ordinance (see below) are not required to provide additional sick leave.

For what purposes may an employee use sick time? 

Sick time, paid or otherwise, may be used for the following purposes:

• An employee’s mental or physical illness, injury or health condition; need for medical diagnosis, care or treatment or need for preventative medical care;
• Care of a family member (a defined term) for like reasons;
• Absence made necessary due to domestic abuse, sexual assault or stalking if the leave is to allow the employee to obtain for the employee or for a family member medical attention, services from a victim services organization, psychological or other counseling, relocation due to domestic or sexual violence or stalking; or legal services, which includes preparing for and attending any civil or criminal proceeding related to domestic or sexual violence.

Sick time may be used in increments of one hour or such shorter time as the employer uses to account for other absences for payroll purposes.

What are the employee’s obligations?

Requests for leave may be made orally or in writing and where possible “shall” include the expected duration of the absence. When the need is known in advance the employee “shall” provide notice of the need and “shall” make a reasonable effort to schedule the time off so as to not unduly disrupt employer operations. It is not likely that employers will be able to deny time off or take adverse action for an employee taking time off for the purposes enunciated by the Ordinance on the basis of insufficient notice. Employers may not inquire into the details relating to domestic violence, sexual assault or of an employee’s medical condition (or that of a family member) as a condition of providing the leave

What are the consequences to employers who deny leave or retaliate?

Covered employers have a duty to notify employees of their sick time rights, including posting the rights in a conspicuous place and in employee hand books. A poster is to be developed by the Agency Mayor Nutter appoints to administer the Ordinance. Employers who interfere with or retaliate against employees exercising their rights under the Ordinance face potential investigation and civil action which could result in the employee being awarded damages that would include all wages and benefits lost, liquidated damages up to $2,000 and payment of the employee’s attorneys’ fees and costs.

For questions, comments or additional information, please contact Robert Small, Partner in our Employment Practice Group, at rsmall@regerlaw.com or via phone at 215.495.6541.