Businesses and employees continue to deal with the ever-changing employment landscape arising from the COVID-19 pandemic. Most recently, the changes are occurring on a local level. On March 9, 2021, Allegheny County Council passed a bill mandating paid sick leave for employees of businesses situated or doing business within the geographical boundaries of Allegheny County with more than 25 employees. The legislation applies to all employers except any state or federal government office, department or institution, and it excludes independent contractors, state and federal workers, construction union members covered by a collective bargaining unit, and seasonal employees. This law is separate from, but similar to, the City of Pittsburgh Paid Sick Leave Act that took effect last year.
The Allegheny County Paid Sick Days Act (the “Act”) requires employers to pay up to five sick days (40 hours) per calendar year to employees, which begin to accrue at the time of hire but cannot be used by employees until they have worked for the employer for at least 90 days. Employees accrue a minimum of 1 hour of paid sick time for every 35 hours worked within the geographical boundaries of Allegheny County, up to 40 hours in a calendar year, unless the employer provides a faster accrual rate or designates a higher amount pursuant to an established sick leave policy. Time is compensated at the employee’s base rate of pay, and with same benefits, in effect at the time. Employees exempt from overtime requirements under the Fair Labor Standards Act will be assumed to work 40 hours each workweek for purposes of sick time accrual, unless their normal workweek is less than 40 hours, in which case sick time accrues based upon the number of hours they work in a normal workweek.
Employees making use of sick time are not entitled to compensation for lost tips or commissions, and compensation is only required for the hours an employee was scheduled to work. Especially important to restaurant workers, an employee who utilizes sick time is not required to search for or find a replacement worker to cover the hours the employee would have worked. Accrued sick time can be carried over to the following calendar year, unless the employer has a policy to provide at least 40 hours of paid sick time at the beginning of each calendar year. An employer is not required to reimburse an employee for unused accrued sick time in the event of termination, resignation, retirement, or other separation from employment. Any employer who already has an established paid sick leave policy that provides at least the same amount of paid leave as required by the Act is not required to provide additional sick time. The provisions of this Act are similar to the Pittsburgh Paid Sick Leave Act that took effect last year, but there are differences, such as the size of employers covered and different paid sick leave levels for smaller employers, as explained in our prior article mentioned above.
Paid sick leave can be used by an employee for the following reasons:
An employee’s mental or physical illness, injury or health condition; need for a medical diagnosis, care or treatment; or an employee’s need for preventive medical care;
To care for a family member with a mental or physical illness, injury or health condition; care for a family member who needs a medical diagnosis, care or treatment; or care for a family member who needs preventive medical care;
Closure of the employee’s place of business by order of a public official due to a public health emergency;
To care for a child whose school or place of care has been closed by order of a public official due to a public health emergency; or
To care for a family member when it has been determined by health authorities or by a health care provider that the family member’s presence in the community would jeopardize the health of others due to exposure to a communicable disease, whether or not the family member has actually contracted the communicable disease.
The above emphasized provision addresses the specific situation posed by the COVID-19 pandemic when an employee needs time off to care for a family member who is required to quarantine due to exposure to the coronavirus but has not tested positive for the illness. However, it is important to remember that this paid sick leave is applicable in any context where an employee requests time off for a medically-related reason, not just in relation to the coronavirus pandemic.
The Act provides that an employee’s oral request to an employer to take paid sick time is sufficient, but the request should include an estimated duration of the absence, with the employee providing as much advance notice as practicable. An employer may maintain its own notification policy that dictates how soon before an employee’s shift he or she must make the oral request to use sick time, provided that: 1) the employer’s notification policy is reasonable and does not obstruct an employee’s use of sick time; 2) if an employer does not have a notification policy, an employee must provide the oral request to use sick time at least one (1) hour prior to the start of the shift; and 3) if the need for sick time is not foreseeable by the employee, he or she must make a good faith effort to notify the employer as soon as possible. The employee must also make a reasonable effort to schedule the use of sick time in a manner that does not unduly disrupt the operations of the employer. For sick time lasting three (3) or more full consecutive days, an employer may require the employee to present reasonable documentation that the sick time has been used for a purpose covered by the Act. Documentation signed by a health care professional indicating that sick time is necessary is considered reasonable. An employer is not permitted to require that the documentation explain the precise nature of the illness or medical condition.
The Act provides employees the right to file a complaint with a soon-to-be-designated County agency, or file a private cause of action in a court of law, for any alleged employer violation of this law. Employees have six (6) months from the date of the alleged violation to file a complaint with the County agency. That agency will have the power to provide “all appropriate relief,” including but not limited to full restitution to the employee for all lost wages and benefits and reinstatement, as well as permitting an employer to take disciplinary action pursuant to the employer’s disciplinary policy that does not conflict with this Act. It is unlawful for an employer to count sick time taken under this Act as an absence that may lead to or result in an adverse employment action, unless the employee fails to follow the applicable notification and documentation procedures explained above. It is also unlawful for an employer to retaliate or discriminate against an employee for exercising any rights afforded by the Act. In particular, there is a rebuttable presumption of unlawful retaliation whenever an employer takes adverse action against an employee within 90 days of when that person:
Files a complaint with the County agency or a court alleging violation of any provision of the law;
Informs any person about an employer’s alleged violation of the law;
Cooperates with the County agency or other persons in the investigation or prosecution of any alleged violations of the law;
Opposes any policy, practice, or act that is unlawful under the law; or
Informs any person of his or her rights under the law.
The provisions above raises concerns about the broadness of the language utilized. For example, it seems that it would be considered a rebuttable presumption of unlawful retaliation any time an employer disciplines or terminates an employee for posting on social media or simply tells a fellow employee or family member about an employer’s alleged violation of the Act, regardless of how widespread, inappropriate, or damaging the information asserted by the employee may be. Employers should be aware that such employer action or rules prohibiting such discussions between employees may also violate the National Labor Relations Act.
As soon as practicable, the County’s new Paid Sick Leave Act requires employers to give written notice to employees of their entitlement to sick time, the amount of sick time, the applicable uses for the sick time, that retaliation against employees who request or use sick time is prohibited, and that each employee has the right to file a complaint with the County agency if sick time is denied by the employer or the employee is retaliated against for requesting or taking sick time. It is expected that the soon-to-be-designated County agency will provide more guidance in the coming weeks and months on the form and substance of these notices, which will be made available through the County website. Employers that willfully violate the notice requirements are subject to a civil fine up to $100 for each offense, in addition to pay and other remedies to an affected employee. The Act’s provisions will take effect 90 days after the posting of the regulation information to employers by the agency.
The stated purpose of the legislation is to improve public health by providing pay to support workers who are ill to stay home, thus avoiding the spread of illness throughout the community. While this goal is admirable and important, the impact on local businesses could be significant, especially when many are still struggling to deal with the repercussions of the coronavirus pandemic. The Act’s prospects remain uncertain amid anticipated legal challenges. One possible legal challenge referenced by County Executive Rich Fitzgerald’s office is the fact that state law does not allow a county council to initiate legislation meant to prevent and control disease transmission. That process is to begin with the Allegheny County Board of Health, with final rules approved by the Board submitted to Council and Mr. Fitzgerald for approval or disapproval. If there are legal challenges to the Act, it will likely not take effect until a court decides the matter.
There are numerous areas of interpretation as to how to go about implementing the requirements of the Act that require good judgment and balancing the important goals of protecting public health and promoting employee wellness with the desire to continue business operations in a cost-effective and non-disruptive way. We are available to help local businesses comply with the requirements under the new Allegheny County Paid Sick Leave Act. For more information or guidance, contact the author of this article, Catherine Loeffler, Esquire, or Craig Brooks, Esquire, employment attorneys at Houston Harbaugh.