Employment & Labor Law

On December 9, 2020, Pittsburgh Mayor, Bill Peduto, signed the Temporary COVID-19 Emergency Paid Sick Leave Ordinance (the “Ordinance”), which takes effect immediately. The Ordinance provides additional paid sick leave protections for Pittsburgh based employees beyond that provided in the federal Families First Coronavirus Relief Act (“FFCRA”) after it expires on December 31, 2020 and in addition to the paid sick leave that went into effect under the Pittsburgh Paid Sick Days Act (“PSDA”).

In March of 2020, the PSDA went into effect to require covered employers to provide up to 40 hours of paid sick leave to qualifying employees at their regular rate of pay (see our prior article on the PSDA here). In addition to the 40 hours of paid sick leave under the PSDA and in addition to any sick leave permitted under an existing employer policy (subject to the caveats discussed below), the Ordinance requires Pittsburgh businesses employing 50 or more employees to provide up to an additional 80 hours of paid sick leave to employees for COVID-related reasons at their regular rate of pay. These requirements apply to larger businesses that were previously excluded under the FFCRA, which limited coverage to employers with fewer than 500 employees. Sick pay under the Ordinance is not tax-reimbursable to the employer like it would be under the FFCRA (see our prior article on the FFCRA here).

The COVID-19 paid sick leave requirements under the Ordinance apply to employees who have been employed by their employer for at least 90 days and: (a) are working for a covered employer within the City of Pittsburgh after the effective date of the Ordinance; (b) normally work for a covered employer within the City of Pittsburgh but are teleworking from any other location as a result of COVID-19; or (c) work for a covered employer from multiple locations or from remote locations, provided that 51% or more of such employee’s time is spent within the City of Pittsburgh.

Eligible employees are permitted to take paid sick leave under the Ordinance for the following qualifying reasons, if they are unable to work in person or telework:

• An employee’s need to: (a) self-isolate and care for oneself because the employee is diagnosed with COVID-19; (b) self-isolate and care for oneself because the employee is experiencing symptoms of COVID-19; or (c) seek or obtain a medical diagnosis, care, or treatment if experiencing symptoms of an illness related to COVID-19;
• An employee needs to care for a family member who: (a) is self-isolating due to being diagnosed with COVID-19; (b) is self-isolating due to experiencing symptoms of COVID-19; or (c) needs medical diagnosis, care, or treatment if experiencing symptoms of an illness related to COVID-19;
• Determination by a public official or public health authority, a health care provider, or an employee’s employer that the employee’s presence on the job would jeopardize the health of others because of the employee’s exposure to COVID-19 or because the individual is exhibiting symptoms that might jeopardize the health of others, regardless of whether the individual has been diagnosed with COVID-19; or
• An employee needs to care for a family member due to a determination by a public official or health authority, a health care provider, or the family member’s employer that the presence of the family member on the job 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 with COVID-19.

The Ordinance eligibility requirements are broader than the FFCRA in that it also provides pay when an employee stops working when experiencing COVID symptoms, even if a health care provider has not directed them to do so and they are not seeking a diagnosis. The Ordinance also expressly gives employers discretion to require an employee to stay home if the employer determines the employee’s presence at work would jeopardize the health of others for COVID-related reasons, which is not expressly stated under the FFCRA but is still permitted.

The Ordinance requires Pittsburgh employers to provide the following amounts of paid sick leave for qualifying employees:

• Employees who work 40 hours or more per week are entitled to up to 80 hours of paid sick leave.
• Employees who work fewer than 40 hours per week are entitled to an amount of paid sick leave equivalent to the amount of time they are scheduled to work or the amount of hours actually worked on average in a 14-day period, whichever is greater.
• Employees whose schedules vary from week to week are entitled to an amount of paid sick leave equivalent to the average number of hours worked over the past 90 days, including hours for which the employee took leave of any kind.

Notably, the option under the PSDA for employers to withhold sick time until it is accrued by the employee (1 hour of paid sick leave for every 35 hours worked) is temporarily revoked by the Ordinance, if an employee’s sick time request arises directly from COVID-19. This means that covered employers are required to provide paid sick leave to qualifying employees immediately without any waiting period or accrual requirements, as long as they have been employed for at least 90 days. Employers can continue to require paid sick leave on an accrual basis for reasons other than COVID-19.

The paid sick leave required by the Ordinance must be provided in addition to any paid sick leave or paid time off to which an employee may already be entitled under an employer’s existing leave policies or other applicable law (subject to the caveats discussed below), and an employee may choose to use COVID-19 sick time before any regular sick time they have accrued under the PSDA or an employer policy. An employee is obligated to provide notice to the employer of the need for COVID-19 sick time under the Ordinance as soon as practicable. An employer is not required to provide any payments to employees for unused COVID-19 sick time upon the employee’s termination, resignation, retirement, or other separation from employment.

There are a few caveats to the Ordinance that may be helpful to employers. To the extent federal or state laws (such as the FFCRA) require employers to provide paid sick leave related to COVID-19, employers can substitute leave under any federal or state laws for its obligations under the Ordinance if they coincide. However, employers are required to provide additional COVID-19 paid leave under the Ordinance to the extent it exceeds the requirements of the federal or state law. Similarly, to the extent an employer has adopted a policy after March 13, 2020 (the date of Pennsylvania’s COVID-19 Declaration of Emergency) that provides its employees with additional paid sick time specifically for COVID-related reasons, an employer can substitute leave under its policy for the leave required under the Ordinance if they coincide. However, employers must provide additional COVID-19 paid sick leave under the Ordinance to the extent it exceeds the requirements of the employer’s COVID-19 specific paid sick leave policy. In other words, just because an employer has a general paid sick leave policy does not mean it can avoid its obligations to pay sick time for COVID-related reasons under the Ordinance. Unless the employer has enacted a COVID-specific paid sick leave policy after March 13, 2020, it is still required to pay additional sick leave for COVID-related reasons under the Ordinance. Employers should keep in mind that they can receive full reimbursement for paid sick leave under the FFCRA through a payroll tax credit but not under the Ordinance, so it makes sense for employers to take advantage of the tax-reimbursable paid sick leave under the FFCRA prior to its expiration at the end of 2020 before using paid sick leave under the Ordinance, if possible.

The Ordinance was enacted to provide additional protections to employees once the federal protections expire under the FFCRA. Unless and until the FFCRA is extended or a new similar federal law is enacted, local businesses should pay careful attention to the provisions of the Ordinance when dealing with paid sick leave issues related to COVID-19. The provisions of the Ordinance end upon the expiration of either the COVID-19 Emergency Disaster Declaration of the Commonwealth of Pennsylvania or the COVID-19 Emergency Disaster Declaration of the City of Pittsburgh, whichever is sooner. An employee is entitled to use COVID-19 paid sick leave under the Ordinance until one week following the official end of the public health emergency.

While the motives behind the enactment of the Ordinance are well-intentioned, the practical effect of the Ordinance provisions may prove difficult for employers depending on particular circumstances. For example, if an employee requests paid sick leave to care for a child whose daycare has shut down due to COVID-19, that would not be a qualifying reason to provide paid sick leave at the regular rate of pay under the Ordinance; however, the employee would be entitled to receive paid sick leave under the FFCRA at two-thirds the regular rate of pay up to 80 hours (however this is only a consideration for the next few weeks until the FFCRA expires or is renewed). It remains to be seen how the provisions of the Ordinance will interact with other local, state and federal regulations and laws and whether or not the Ordinance will need to be tailored in the future based on practical effects once implemented. For instance, one could foresee a scenario where an employee could potentially utilize the protections afforded under local and federal laws to receive over 100 hours of paid sick leave, consecutive or intermittently, which can have a negative effect on an employer’s workforce and business operations, particularly if it is utilized by multiple employees at the same time. Further guidance from the City of the Pittsburgh on implementation and interpretation of the Ordinance is expected in the coming weeks.

There are many complex issues and questions that can arise with these ever-changing regulations. If we can help you to further navigate these uncharted waters, please contact the author of this article, Catherine Loeffler, or Craig Brooks, Houston Harbaugh’s employment attorneys.

Catherine S. Loeffler– 412-288-2262

Craig M. Brooks– 412-288-2214