In the recent decision in Hexcel Corp. v. Lab Commission, the Utah Court of Appeals affirmed a decision by the Utah Labor Commission that Hexcel was liable for discrimination and/or retaliation when it fired an employee because of his disability and related request for accommodation.

Michael Pickard had worked as a maintenance electrician. He injured his back in an accident at work. After the injury, his doctor recommended that he not stand, sit, or walk for extended periods. Mr. Pickard requested that Hexcel accommodate his injury by allowing him to work eight-hour shifts, instead of his normal 12- hour shift. The employer denied the request because it was “short-staffed,” so Mr. Pickard resumed his normal work schedule.

Long before Mr. Pickard’s accommodation request, Hexcel had instituted a rule against sleeping on the job. However, this rule was not enforced. Later, the company circulated a memorandum expressing its intent to begin enforcing the no-sleeping rule and informing its employees that a violation would result in termination. Even after this, Hexcel’s enforcement of the no-sleeping rule was inconsistent. Some employees violated the rule, but were not terminated—or even disciplined—for their infractions.

In addition, the exact parameters of the no-sleeping rule were not clearly established. When employees asked about the rule, they were given conflicting explanations. Some were told that they could nap on their breaks as long as they were in the designated breakroom. Other workers were told that they could nap anywhere, as long as they were on a break. Hexcel never put these “evolutions and modifications” of the rule into writing.

A few months after the company denied Mr. Pickard’s request for accommodation, he was caught sleeping in a company truck during a brief break and was fired.

The Commission determined that Mr. Pickard had made out a prima facia case of discrimination on the basis of his disability, and that Hexcel’s allegedly nondiscriminatory basis for firing him based on the no-sleeping rule was pretextual, because the rule was “incoherent” and inconsistently applied. The Commission awarded damages for lost wages, out-of-pocket medical expenses, and the amount of withdrawals Mr. Pickard had made from his savings and 401(k) accounts to cover living expenses during the time he was unemployed.

The Utah Court of Appeals affirmed, finding that the Commission’s determination was supported by substantial evidence and was not clearly erroneous. The court modified the damages award, however. It concluded that in granting Mr. Pickard damages for lost wages, plus the funds he had to withdraw from his savings accounts to compensate for these lost wages, the Commission had given him an impermissible “double recovery.”

Although the court reduced the amount of Mr. Pickard’s damages, the Hexcel case serves as a warning and reminder to employers that taking an adverse action against an employee on the basis of an inconsistent, unclear policy can have serious consequences and lead to costly litigation. Fortunately, preventing successful discrimination/retaliation claims can be a simple matter of routinely reviewing and updating your company’s handbook, policies, and verifying consistent compliance with the same. Should you need assistance with this, the Labor and Employment attorneys at Ballard Spahr LLP have decades of experience in advising public and private employers in policies and compliance and any other labor-related issues that may arise. 

The United States indicted DaVita, Inc., and Kent Thiry, DaVita’s former Chief Executive Officer, last year alleging that they had violated Section 1 of the Sherman Act by engaging in “Conspiracy in Restraint of Trade to Allocate Employees.” The essential elements of the criminal charges were alleged agreements with competitors not to poach each other’s employees.

The trial began that on April 4, 2022, was among the first of its kind since the Department of Justice (DOJ) and the Federal Trade Commission (FTC) issued guidance in 2016 stating that the DOJ would prosecute naked no-poaching or wage-fixing agreements. On April 15, 2022, a federal jury found both DaVita and Thiry not guilty of criminal conspiracy. Additionally, on April 14, 2022, a federal jury in Texas found the owner of a physical therapy staffing company, Neeraj Jindal, and John Rodgers, a former clinical director of the company, not guilty of criminal charges related to employee wage-fixing.

While these verdicts may signal that juries are skeptical of the government’s efforts to criminally prosecute companies or individuals in these labor/employment cases, it is unlikely that the DOJ will cease pursuing these types of matters.

Ballard Spahr’s Labor and Employment and Antitrust Groups are prepared to answer questions regarding antitrust issues in the context of the labor market, as well as non-solicitation and no-poach provisions and have written a full alert on this matter here. Please contact us if we can assist you in understanding your company’s legal requirements and the measures your business must take to remain in compliance with applicable law.

 

Welcome back to Ballard Spahr’s New York Minute.  Below are some of the latest developments impacting employers in the fast-paced and ever-evolving New York market.  Please contact us with questions regarding the topics below or for any other guidance related employment laws covering New York employers.

Electronic Employee Monitoring Law Effective May 7, 2022

Beginning May 7, 2022, New York employers that electronically monitor phones, emails, and/or internet usage (among other sources) will be required to give written notice of that monitoring to new employees upon hiring, and must also post a notice of those monitoring efforts in the workplace.

Pay Transparency Law Update – Guidance and Pending Amendments that May Push the Law’s Effective Date

New York City has introduced guidance regarding its pay transparency law – currently set to become effective May 15, 2022 – which requires employers employing four or more workers to include a good faith salary range (i.e., the minimum and maximum salary for any position) in any advertisements for a job, promotion, or transfer opportunity performed in NYC.  The new guidance issued by the New York City Commission on Human Rights, provides further insights into what job listings are covered by the new law (including certain remote positions performed, in whole or in part, in New York City) and what information must be included with job advertisements.

The City has also introduced amendments to the pay transparency law, currently pending, which if passed would, among other things, increase the threshold of the law’s applicability to employers that employ fifteen or more employees and would delay the law’s effective date until November 1, 2022.

EEOC Releases Guidance on Caregiver Discrimination

  • Keeping in mind that New York City law already expressly prohibits discrimination based on “caregiver” status, and that New York State law prohibits discrimination based on “familial status,” New York employers can now also refer to recent guidance from the EEOC entitled “The COVID-19 Pandemic and Caregiver Discrimination Under Federal Employment Discrimination Law” and its updated COVID-19 “What You Should Know” document, both of which explain how discrimination against individuals with caregiving responsibilities may trigger liability under federal anti-discrimination statutes.  The EEOC’s guidance provides pandemic-specific examples of discrimination against caregivers that might trigger such liability – g., it would be unlawful for an employer to refuse to hire a female applicant based on the assumption that she would be charged with child care duties during any quarantine, illness or remote schooling because of her sex.
  • In addition, the EEOC’s “What You Should Know” updates contain new guidance (in question and answer format) regarding types of caregiver discrimination that would violate laws enforced by the EEOC and also include guidance on equitably enforcing policies regarding modified and telework schedules.

Release of Personnel Files as Retaliation Under the New York State Human Rights Law (“NYSHRL”)

  • Effective immediately, employers in New York are prohibited from disclosing the personnel file of an employee who opposed unlawful discrimination under the NYSHRL, filed a complaint alleging violations of the NYSHRL, or participated in a legal proceeding involving the NYSHRL, to an unauthorized third party for any reason.  The amendment to the NYSHRL does not define “personnel file,” but it includes documents such as performance evaluations, complaints from guests or co-workers, disciplinary forms, attendance records, forms that relate to transfers and promotions or demotions, and termination forms.  The amendment also clarifies that it is not retaliation for an employer to release personnel records where it is necessary to respond to a complaint or administrative proceeding.

Pending Amendments in the New York State Legislature Would Expand Employee Protections

  • No Rehire Clauses in Settlement Agreements
    • The New York State Senate via Senate Bill S766 has passed legislation that would make any release of a claim by an employee against an employer unenforceable if that employee, as part of that release, is prohibited from applying for or accepting future employment with that employer.
  • Let Survivors Speak Act
    • Senate Bill S738 would prohibit settlement agreements involving sexual harassment or any form of discrimination prohibited by law that require employees to pay liquidated damages for violations of non-disclosure provisions included in such agreements.
  • Increased Statute of Limitations for Discrimination Claims
    • Senate Bill 566A would extend the statute of limitations of the NYSHRL for filing complaints about alleged discriminatory practices to the New York State Division of Human Rights from one year to three years, consistent with the current statute of limitations for complaints alleging sexual harassment.
    • Senate Bill 849A would amend the New York Civil Practice Law and Rules to extend the statute of limitations for civil actions alleging unlawful discrimination from three years to six years.  The legislature reasoned that victims of workplace harassment may not come forward for some time, and that by extending the amount of time they have to file a claim, the bill will better protect victims of workplace discrimination.

Federal Court Rules in Favor of Testing for Marijuana Usage Under New York City Human Rights Law Exception

On April 12, 2022, in Thomas v. Amazon.com Inc.,  1:21-cv-01325, the United States District Court for the Eastern District of New York dismissed a proposed class action lawsuit against Amazon.com, Inc. that was brought against the company pursuant to the New York City Human Rights Law (“NYCHRL”), which prohibits employers from testing most workers for marijuana as a condition of employment.   Several individuals who had their offers to work pulled following positive tests for marijuana during a pre-employment drug screening sued the company, alleging that its policy of screening potential new hires for marijuana violates the NYCHRL’s prohibition.

The Court dismissed the lawsuit because the position of the prospective employees in the case was that of “sortation associate,” which the Court found to be within the exception to the NYCHRL’s prohibition for jobs involving the operation of heavy machinery.  Because the sortation associate position required the use of industrial conveyors and monitoring the flow of object traffic, the Court found that “there are a multitude of ways a marijuana-impaired employee could cause accidents,” such that the exception applied.

Earlier this week, in an ongoing case between Cemex Construction Materials Pacific, LLC and International Brotherhood of Teamsters, NLRB General Counsel Jennifer Abruzzo filed a brief calling for the Board to reinstate the 1949 Joy Silk Mills decision – which has not been enforced since the late 1960s.  Under Joy Silk, employers may be required to recognize and bargain with a labor group prior to an election when the union provides evidence of authorization cards signed by a majority of the employees in the proposed unit (known as a card check), unless they have clear evidence against the group’s majority support.  Currently, employers may insist upon an election overseen by the Board when presented with evidence that a union wishes to represent its workforce.  A return to the Joy Silk standard would require employers to demonstrate a “good faith doubt” as to the union’s majority status to insist on an election.

Good faith under Joy Silk required a consideration of “all relevant circumstances, including any unlawful employer conduct, the sequence of events, and the time lapse between the refusal and the unlawful conduct.” The General Counsel’s brief sets forth examples of evidence that might demonstrate a lack of good faith, including:

testimony or internal documentary evidence revealing the employer’s purpose at the time of its refusal to bargain, the legitimacy of the employer’s proffered reasons for refusing to bargain, or its failure to offer any explanation. This would include situations in which the employer’s reason for refusing to bargain is to gain time in order to persuade employees to change their minds, even using what would otherwise be lawful persuasion. In addition, where the employer has committed unfair labor practices, the Board may consider all circumstances, including the identity of the agent who committed the violations, the nature of the violations, and the timing of the violations, but in any event, such violations will decrease the likelihood that the employer will meet its burden to show good faith doubt.

Under the General Counsel’s proposed standard, if the Board determined an employer lacked a good faith doubt, it could order the employer to recognize and bargain with the union. This is true even in the absence of an unfair labor practice.

The brief argues that Joy Silk should be reinstated “prospectively, because the Board’s current remedial scheme has failed to deter unfair labor practices during union organizing drives and provide for free and fair elections.”  The argument carries out Abruzzo’s prior public statements, and her September 2021 tweets where she summarized the facts of the Joy Silk decision and stated she “will examine whether a return to Joy Silk is necessary to fulfill the [NLRA’s] mission. If a charge is filed alleging an employer is refusing to bargain without a good faith doubt of a union’s majority status, [the General Counsel will] consider asking the Board to resume applying Joy Silk.”  The brief comes on the heels of the General Counsel’s memorandum that “captive audience” meetings violate federal labor law, as we reported here.

If the General Counsel’s proposed approach is adopted by the NLRB, a return to the Joy Silk standard would represent a significant departure from decades of Board law and would directly and immediately impact how employers respond to employees wishing to unionize, including what employers can do when faced with a union claiming to represent a majority of employees in the proposed unit. Ballard Spahr’s Labor and Employment Group advises employers regularly on how to navigate union organizing campaigns and representation elections, and is ready to assist employers should the law change.

On April 11, 2022, citing the rising numbers of COVID-19 cases, the Philadelphia Department of Public Health announced that it has moved into the “Mask Precautions” pandemic response level and will reinstate the City’s indoor mask mandate for most indoor spaces.  Masks will be required beginning Monday, April 18, after a one-week education period.  While masks will be required in indoor public places, there is no vaccine requirement for places that serve food or drink.  The City stopped enforcing the indoor mask mandate for businesses and institutions on March 2, 2022.  While the School District of Philadelphia did not reinstate its mask mandate, it will require all students and staff to wear masks the week of April 18 – 22.  Philadelphia is the first major city in the United States to bring back masking requirements after many states and cities dropped masking requirements in February and March.

On April 7, 2022, in a move that could dramatically alter long-established employer tactics in union organizing campaigns, National Labor Relations Board (NLRB) General Counsel Jennifer Abruzzo issued a memorandum announcing that she will ask the Board to find what are commonly known as “captive audience” meetings to constitute an unfair labor practice (ULP) under the National Labor Relations Act (NLRA).

Abruzzo explained that mandatory meetings in which employees are exposed to the employer’s messaging on unions “inherently involve an unlawful threat that employees will be disciplined or suffer other reprisals if they exercise their protected right not to listen to such speech.”  Abruzzo further reasoned that the Board has long recognized that the NLRA protects employees’ right to listen — as well as their right to refrain from listening — to employer speech concerning the exercise of NLRA Section 7 rights (protecting an employee’s freedom to join or not join a union or engage in other protected, concerted activity).  She further said that the Board was wrong in its consistent rulings that an employer does not violate the NLRA merely by utilizing mandatory meetings to communicate its opinion on labor matters in a union organizing campaign or otherwise.

The General Counsel will urge the Board to find violations of Section 8(a)(1) of the NLRA when:  (1) employees are required to convene in groups on paid time; or (2) employees are spoken to by  management representatives while performing their job duties – where the subject involves topics related to the exercise of employees’ Section 7 rights.  In both instances, the General Counsel stated employees “constitute a captive audience, deprived of their statutory right to refrain,” and that employees will reasonably perceive a threat of discipline if they do not attend or listen to the employer’s message, even if the threat is not explicitly stated.

Abruzzo argued that banning captive audience meetings will not impair employers’ freedom of expression, because their attempts to persuade employees are still protected by the NLRA’s free speech provisions.  The General Counsel cited to the Supreme Court case of Thomas v. Collins for the proposition that the First Amendment does not protect employer speech when “other things” are added to the persuasion to bring about coercion.  323 U.S. 516 (1945).  However, Thomas dealt with the validity of a prior restraint on the speech of a labor organizer after he failed to register with the state, in violation of a Texas statute.  Thomas does not discuss captive audience or mandatory meetings, and the opinion does not otherwise suggest these are inherently coercive.

The General Counsel proposed that the Board should require employers to convey clearly to employees that their attendance at meetings regarding their labor rights is truly voluntary.  Captive audience meetings have long been an important tool in the toolbox of an employer facing an organizing campaign, or wishing to forestall one with preemptive employee communications.  The General Counsel issued the memorandum following years of union arguments that these mandatory meetings violate employee rights under the NLRA and is one more indication of the strong, pro-labor stance adopted by the Biden Administration.

Ballard Spahr’s Labor and Employment Group advises employers regularly on how to navigate communication and negotiation with their employees in the context of organizing campaigns.

Himamauli Das, the Acting Director of the Financial Crimes Enforcement Network (“FinCEN”), spoke about the Anti-Money Laundering Act of 2020 (the “Act”)  and FinCEN’s role in its implementation at New York University Law School’s March 25, 2022 Program on Corporate Compliance and Enforcement.  After discussing the Act’s emphasis on modernizing and improving the effectiveness of the general U.S. anti-money laundering (“AML”) framework, Mr. Das devoted the final portion of his talk, denoted as “Compliance and Enforcement” in his prepared remarks, almost entirely to FinCEN’s whistleblower program.

As we have blogged (herehere and here), the Act’s amendment of the Bank Secrecy Act (“BSA”) greatly expands the options for whistleblowers alleging AML violations and should generate litigation and government actions, similar to what occurred over the past decade in the wake of the creation of the Dodd-Frank whistleblower program.  The remarks by Mr. Das highlighted that FinCEN is hiring personnel for its new “Office of the Whistleblower;” is already receiving whistleblower tips; and is actively drafting rules to implement the Act’s whistleblower provision.  However, FinCEN still faces a major hurdle – lack of Congressional funding for the program.

Mr. Das prefaced his remarks on the whistleblower program by highlighting FinCEN’s expanded enforcement and compliance efforts with regard to “paper [AML] programs” – i.e., “programs that look functional, but which do not allow an institution to identify and generate meaningful reporting of a significant amount of suspicious activity flowing through the institution.”  He emphasized FinCEN’s willingness to take “strong enforcement action” when presented with what it deems to be either “willful violations” of the BSA or “egregious disregard” of the requirements for implementation and maintenance of an AML program that “reasonably guards” against money laundering and terrorist financing.  As one example of that willingness, he highlighted the imposition of a $100 million fine on virtual currency derivative exchange BitMEX, for its alleged failure to mount a compliant AML program while facilitating hundreds of millions of dollars in “transactions involving known darknet markets or unregistered money services businesses.”  Mr. Das summed up FinCEN’s approach in stark terms: “our enforcement office does not tolerate paper programs.”

Mr. Das then discussed the implementation of the Act’s whistleblower provision by FinCEN’s Enforcement and Compliance Division, which he said “we’re very excited about” despite still being “in the early stages of this effort[.]”  He framed the whistleblower program as something that financial institutions should welcome, calling it their “fourth line [of defense],” after “their lines of business, their compliance departments, and their auditors.”

Mr. Das then highlighted the “statutory guardrails” for the program:

  • Predicating eligibility for a monetary award on the information provided leading to a successful enforcement action by DOJ or FinCEN
  • A balance between the requirement for DOJ and FinCEN to preserve whistleblower confidentiality and their ability to share the information obtained from the whistleblower with other law enforcement and regulatory agencies
  • Robust protections against employer retaliation and discrimination against whistleblowers, including the right to bring an action either in court or before the Department of Labor (“DOL”), and to seek compensatory damages, reinstatement, and double back pay. (Mr. Das noted that implementation of these protections fall under the aegis of the DOL.)

Finally, Mr. Das acknowledged, diplomatically, that Congress has thus far neglected to actually fund the whistleblower program via appropriations (as called for in the Act.)  He said that FinCEN’s work with Congress on this issue has been “constructive[]” and expressed optimism for “continued progress over the course of the year.”  Despite the admission that Congress’ failure to fund the program it called for in the Act “has slowed [FinCEN’s] efforts,” Mr. Das highlighted steps taken thus far, including (1) creation of a FinCEN “Office of the Whistleblower,” and the hiring of “key personnel” to build and supervise the whistleblower program; (2) the ongoing acceptance of whistleblower tips while a “more formal tip intake system” is developed; and (3) the active drafting of rules to implement the Act’s whistleblower provision, for which he “welcome[s] public comment” after the (as yet unscheduled) publication of a Notice of Proposed Rulemaking.

It remains to be seen whether FinCEN’s active promotion of its whistleblower program will bear immediate fruit, or if the budgetary constraints will hamper its ability to process and investigate tips.  Still, the full-throated promotion of the program by FinCEN’s acting director seems likely to pique the interest of financial institution staffers who may have previously felt disincentivized to report their concerns and thereby jeopardize their positions.

If you would like to remain updated on these issues, please click here to subscribe to Money Laundering Watch.  Please click here to find out about Ballard Spahr’s Anti-Money Laundering Team.

Originally published in June of last year, and as reported by Ballard Spahr here, the OSHA Healthcare Emergency Temporary Standard (“ETS”) set safety requirements for health care and health care support service workers in settings where people with COVID-19 are reasonably expected to be present. The ETS expired after six months, on December 21, 2021.

OSHA had previously announced that it intended to issue a permanent standard, or set of rules, to replace the expired ETS. Just this week, OSHA reopened the rulemaking record partially and scheduled an informal public hearing to seek comments on specific topics that relate to the development of a final standard to protect healthcare and healthcare support service workers from workplace exposure to the COVID-19 virus. OSHA will also reopen the regulation for public comment from March 23, 2022, through April 22, 2022.

The agency is reopening the rulemaking record to allow for new data and comments on topics, including the following:

  • Alignment with the Centers for Disease Control and Prevention’s recommendations for healthcare infection control procedures.
  • Additional flexibility for employers.
  • Removal of scope exemptions.
  • Tailoring controls to address interactions with people with suspected or confirmed COVID-19.
  • Employer support for employees who wish to be vaccinated.
  • Limited coverage of construction activities in healthcare settings.
  • COVID-19 recordkeeping and reporting provisions.
  • Triggering requirements based on community transmission levels.
  • The potential evolution of SARS-CoV-2 into a second novel strain.
  • The health effects and risk of COVID-19 since the ETS was issued.

With the announcement, OSHA reaffirmed its plans to publish a permanent COVID-19 safety standard for the healthcare industry. The announcement also makes clear that “employers must continue to comply with their obligations under the General Duty Clause, Personal Protective Equipment and Respiratory Protection Standards, as well as other applicable OSHA standards to protect their employees against the hazard of COVID-19 in the workplace.” Ballard Spahr’s Labor & Employment Group counsels employers regarding the changing requirements of workplace safety and compliance.

The historical uncertainty regarding whether businesses must have websites and mobile applications that are accessible to persons with disabilities has been, in part, the result of the absence of regulatory direction as to whether such digital assets are covered by Title III of the Americans with Disabilities Act (ADA).

While regulations have yet to be promulgated, the United States Department of Justice (DOJ) on March 18, 2022 published Guidance on Web Accessibility and the ADA explaining that entities covered by Title II (state and local governments) and Title III (places of public accommodation) should ensure their websites are accessible to people with disabilities in line with the ADA’s requirements.

The Guidance explicitly confirmed the DOJ’s position that businesses and state and local governments “must ensure that programs, services, and goods that they provide to the public – including those provided online – are accessible to people with disabilities.” The DOJ explained that covered entities should address unnecessary barriers, such as inaccessible web content, so that individuals with disabilities have equal access to information.

The DOJ specifically noted that in recent years, “a multitude of services have moved online, and people rely on websites like never before for all aspects of living,” including accessing voting information, finding up-to-date health and safety resources, and looking up mass transit schedules and fare information. The DOJ’s Guidance clarified that the Department has “consistently taken the position that the ADA’s requirements apply to all the goods, services, privileges, or activities offered by public accommodations, including those offered on the web.”

The Guidance highlighted common examples of website accessibility barriers, including poor color contrast, use of color alone to provide information, lack of text alternatives (“alt text”) on images, a lack of captions on videos, inaccessible online forms, and mouse-only navigation (lack of keyboard navigation).

As we previously noted, the ADA does not currently mandate any particular technical standard for website accessibility, and the DOJ’s Guidance explained that businesses and state and local governments have flexibility in how they comply with the ADA. However, the DOJ pointed to existing standards, such as the Web Content Accessibility Guidelines (WCAG) as providing guidance concerning how to make website features accessible.

In emphasizing that web accessibility is a priority for the DOJ, the Guidance additionally provided a review of cases wherein the DOJ has used its enforcement authority to ensure businesses and state and local governments have made accessible goods and services offered online.

The DOJ’s clear position in this Guidance is likely to shape the development of this continually evolving legal space. Given the lack of concrete regulations, and the lack of specific requirements in this Guidance, we expect that litigation will continue to increase, as it has over the last five years. All businesses and state and local governmental bodies subject to the ADA should continue to stay informed, and are encouraged to review the accessibility of their websites and other digital assets and adopt an ADA Risk Management Program.  Ballard Spahr’s Accessibility Team is ready to assist with your compliance and litigation needs.

In June, 2021, Philadelphia’s previous public health emergency leave mandate expired. However, on March 9, 2022, Philadelphia Mayor Jim Kenney signed a new bill extending COVID-19 paid sick leave to certain eligible employees. That bill became effective immediately upon signature. These requirements will sunset on December 23, 2023.

Under this new ordinance, employers with more than 25 employees must provide up to 40 hours of additional paid sick leave to eligible employees who are unable to work for reasons related to COVID-19, including:

  • A determination by a public official or public health authority having jurisdiction, a health care provider, or an employer that the employee’s presence on the job or in the community would jeopardize the health of others because of the employee’s exposure to COVID-19 or because the employee is exhibiting symptoms that might jeopardize the health of others, regardless of whether the employee has been diagnosed with or has tested positive for COVID-19.
  • Caring for a family member due to a determination by a public official or health authority having jurisdiction, 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 a determination by the employer that the employee is a danger to the health of others because they are exhibiting symptoms that might jeopardize the health of others, regardless of whether the family member has been diagnosed or has tested positive with COVID-19.
  • Caring for oneself or a family member self-isolating due to having tested positive or diagnosed with COVID-19.
  • Caring for oneself or a family member self-isolating due to experiencing symptoms of COVID-19.
  • Seeking a medical diagnosis, care, or treatment due to experiencing symptoms of an illness related to COVID-19.
  • Caring for a family member who needs medical diagnosis, care, or treatment due to experiencing symptoms of an illness related to COVID-19.
  • Caring for a child, whose school or place of care has been closed, or the childcare provider of such child is unavailable, due to precautions taken in response to COVID-19.
  • Receiving a COVID-19 test or vaccine (including a booster), or recovering from injury, disability or illness related to vaccination.

Eligible employees are those who either work in the City of Philadelphia, normally work in the City of Philadelphia but are currently teleworking due to COVID-19, or work from various locations, so long as 51% of the employee’s time is spent in the City of Philadelphia.  Eligible employees who work 40 or more hours a week are eligible for a full 40 hours of COVID-19 leave, whereas eligible employees who work less than 40 hours a week receive an amount based on average hours worked or scheduled, whichever is greater.  Note that there is no waiting period and no length of service requirement before use of this leave. The leave must be paid at the employee’s regular rate of pay.

Employees are required to provide notice of their need for leave as soon as practicable, but the ordinance offers no guidance on employee notice obligations when the need for leave is unforeseeable.  In connection with this leave, employers should only request self-certified statements from the employee that the leave was taken for a covered reason.  Employers must also post a notice of employee rights.

Employers may use existing paid leave policies to comply, but only to the extent the policy is equally generous and meets all the requirements of the mandate.  Further, the ordinance includes an exemption for any employer policy which provides (a) at least 120 hours of paid time off in 2022 (for 40-hour/week employees), and (b) that time can be used for the same reasons and under the same conditions set out in the ordinance.

Given the complexity of this ordinance, and the significant publicity it has received, we recommend that employers consult with counsel to ensure that they are in compliance with accurate policies and training to follow those policies. We also recommend that employers monitor the City’s webpage for updated guidance. Ballard Spahr regularly works with its employer clients to assist them with leave laws and other aspects of labor and employment laws at the federal, state and local government levels.