The Paid Sick Leave Debate: Another Municipality Making an Effort

In 2015, the City of Pittsburgh passed an ordinance, which was supposed to take effect on January 1, 2016, requiring all employers to begin offering paid sick leave to their employees. Pennsylvania does not currently have a state-wide law governing paid sick leave which is why some municipalities have decided to create their own. By enacting its ordinance, Pittsburgh joined Philadelphia as the only two municipalities in the state to mandate paid sick leave, regardless of the employer’s size. Both may be in jeopardy, however, since a bill recently passed the Pennsylvania Senate demonstrating a legislative intent to undermine the municipalities’ regulation of paid sick leave. Further, Pittsburgh’s ordinance was immediately brought into question when the Pennsylvania Restaurant and Lodging Association and the Building Owners and Managers Association of Pittsburgh, among others, filed suit questioning whether the ordinance could stand under Pittsburgh’s home rule charter regulations.

Pittsburgh’s ordinance states that employers must provide employees with at least one hour of paid sick leave for every thirty-five hours worked within the city’s limits. Employees would be able to use accrued sick time when the employee or a family member is sick, injured, or receiving medical attention. If it takes effect, the ordinance would allow businesses with fewer than fifteen employees to cap the amount of paid sick leave at three days per year. Smaller businesses (fewer than fifteen employees) could also hold off on offering paid sick leave until the second year of the ordinance being in effect. Larger employers, however, would be required to offer at least five paid sick days each year immediately.

The lawsuit against Pittsburgh’s ordinance was filed based upon Pittsburgh being a home rule charter municipality. This means that under state law, such a municipality cannot set duties, responsibilities, or requirements for businesses or employers except as expressly allowed by statute. The Pennsylvania Commonwealth Court determined in May of 2017 that Pittsburgh’s ordinance violated its home rule charter by imposing the affirmative duty for employers to provide paid sick leave to their employees when there is not a current Pennsylvania statute that allows for such action. The city appealed the case to the Pennsylvania Supreme Court, where it remains pending. The ordinance has not yet taken effect and awaits the Pennsylvania Supreme Court ruling.

Philadelphia’s paid sick leave ordinance, however, has been in effect since 2015. It similarly states that employers are required to provide employees with at least one hour of paid sick leave for every forty hours they work within the city. Employers with ten or more employees must provide their employees with paid sick leave, while those with under nine employees merely need to provide for sick leave without pay. The employee’s number of sick days accrues at the same rate regardless of whether the employer is required to pay the employee for his or her time off. Employees are eligible to earn up to forty hours of paid sick leave per year and may begin drawing on this time after working at least ninety days for the employer. Philadelphia is also a home rule charter municipality, but its ordinance has yet to be challenged.

In response to both cities’ ordinances, the Pennsylvania Senate passed SB 128 to retroactively remove the ability for municipalities to require employers to offer paid sick leave for employees. The bill would have overridden Philadelphia’s existing ordinance and would have rendered the suit against Pittsburgh moot, but it did not make it past the debates in the House. Even though it did not survive the legislative process, the bill’s initial proposal demonstrates an inclination from the Senate, at least, disfavoring these ordinances.

Although beneficial to employees, Pittsburgh’s and Philadelphia’s ordinances may harm smaller businesses by forcing them to offer paid sick leave programs they may struggle to afford. With many regulations already surrounding small businesses, adding yet another requirement would make it still more difficult for them to thrive. Businesses of any size, however, may want to consider offering paid sick leave programs on their own initiative as an added benefit to entice employees. The greater and more varied the benefits package, the more likely it is that qualified employees will want to work for such an employer. To date, Philadelphia’s ordinance remains in effect, and employers should be on the lookout for the Pennsylvania Supreme Court decision regarding Pittsburgh’s ordinance.

This article was written with contribution from Sarah Rothermel, 3rd year law student at Widener Law Commonwealth.