On Monday, the City of Philadelphia adopted a new version of Public Health Emergency Leave (PHEL), mandating up to 80 hours of paid leave benefits in 2021 for employers with 50 or more employees.  The law went into effect on the date it was signed — March 29, 2021. PHEL is a new leave entitlement in 2021 that is not reduced based on any leave usage prior to its enactment.  PHEL is in addition to any paid leave that employers provide under existing policies, subject to certain exceptions discussed below.

Employee Eligibility.  All employees who have worked for their employer for at least 90 days are eligible, if they work in Philadelphia or normally work in Philadelphia but are currently teleworking from any location as a result of COVID-19.  Employees meeting these criteria are immediately eligible for PHEL, without waiting periods or accrual requirements.

Leave Entitlement.   For full-time employees working at least 40 hours per week, 80 hours of paid leave must be provided at the employee’s regular rate, plus continuation of benefits including health care.  Employees working less than 40 hours per week are entitled to PHEL based on the amount of work scheduled or performed in an average 14-day period.  An employer cannot require an employee to use other paid leave before using PHEL, unless state or federal law requires otherwise.  The leave entitlement remains available until one week following the official termination or suspension of the public health emergency.

Qualifying Reasons for Use.  Qualifying reasons for leave are similar to those set forth in the federal Families First Coronavirus Response Act (FFCRA).  An employee is eligible for PHEL if the employee is unable to work or telework because:

  1. The employee has been exposed to COVID-19 or is exhibiting symptoms, and the employer, health care provider, or public health officials determine the employee’s presence on the job may jeopardize the health of others (regardless of whether the employee has been diagnosed);
  2. The employee needs to care for a family member who has been exposed to COVID-19 or is exhibiting symptoms;
  3. The employee has to self-isolate because the employee has been diagnosed with or is experiencing symptoms of COVID-19 and/or is seeking medical treatment;
  4. The employee needs to care for a family member who has to self-isolate because the family member has been diagnosed with or is experiencing symptoms of COVID-19 and/or is seeking medical treatment;
  5. The employee needs to care for the employee’s child if the child’s school or place of care is closed or the childcare provider is unavailable due to COVID-19 precautions.

In addition, PHEL is available when an employee needs to obtain the COVID-19 vaccination, or needs to recover from any injury, disability, illness or condition related to such vaccination.  This addition mirrors the changes in the American Rescue Plan Act (ARPA), which extended the tax credit for those employers that opt voluntarily to provide FFCRA leave benefits.

Existing Paid Time Off Policies.  Subject to the exceptions below, the PHEL ordinance requires employers to provide PHEL in addition to any other paid leave benefits already provided.  The ordinance further states that PHEL in 2021 shall not be reduced by any paid leave the employee has received, including PHEL provided in 2020.

Exceptions:  The ordinance contains three exceptions to the obligation to provide additional PHEL under certain circumstances.  These are:

  1. For employees who perform the majority of their duties through telework, the PHEL ordinance does not require employers to provide additional paid leave, provided that the employer’s existing policy provides teleworking employees with at least 80 hours of paid leave in 2021, and such leave can be used for the same reasons and under all of the same conditions as PHEL.
  2. An employer will be excused from providing additional paid leave to employees if the employer’s existing policy provides at least 160 hours of paid time off in 2021 that is not specifically designated as sick leave, and can be used for the same reasons and under all the same conditions as PHEL.
  3. Under the ordinance’s concurrent use provisions, if an employer has adopted a paid leave policy on or after March 6, 2020, which provides employees in 2021 with additional paid leave specifically for use during the COVID-19 pandemic, such leave may be substituted for PHEL to the extent they coincide. If the employer’s COVID-19 pandemic paid leave policy provides less leave than mandated by PHEL, the employee is entitled to the additional PHEL.

It is unclear under the ordinance what leave entitlement would apply if an employee is teleworking and then returns to in-person work during 2021.

Return to Work.  Employees who use PHEL must be reinstated to the same position as when the leave commenced.  This differs from FMLA leave which permits return to the same or an equivalent position.  Further, unlike FMLA, the ordinance does not provide for an exception if the employee’s position has been eliminated.

Notice to Employees.  Employers are required to notify employees of their PHEL rights within 15 days of enactment or by April 13, 2021.

Collective Bargaining Agreements.  PHEL rights are not waiveable in collective bargaining, unless the waiver is contained in the bargaining agreement in clear and unmistakable terms; the agreement provides for a comparable paid leave benefit; and the agreement is in effect contractually (as compared to implemented unilaterally).

Enforcement.  Employees have the right to file a civil action against employers that violate the 2021 PHEL law, which also contains a non-retaliation provision. Philly PHEL 2021 Ordinance signed