In 2015, the City of Pittsburgh enacted an ordinance to provide all employees within the municipality a set amount of paid sick leave per year. The ordinance is applicable to all employers, regardless of size or number of employees, with a few exceptions for federal and state employees, independent contractors, construction workers participating in a collective bargaining unit, and seasonal workers with set dates of hire for up to 16 weeks. After numerous legal challenges and four years of litigation, the ordinance finally was upheld by the Pennsylvania Supreme Court in July 2019. Here is how this ordinance could affect your business if your municipality chooses to adopt a similar ordinance.
Under Pittsburgh’s ordinance, businesses with more than 15 employees will be required to award 1 hour of paid sick time for every 35 hours which an employee works subject to a cap of 40 hours per year. For businesses with fewer than 15 employees, the cap drops to 24 hours of sick leave per year, and these businesses will have one year after the ordinance takes effect in which to award unpaid sick leave. After this year, these employers must also begin awarding paid sick leave like their larger counterparts. Employees must be paid at their normal hourly or salaried rate during any paid sick leave. Sick time begins to accrue on the first day the ordinance takes effect or the first day the employee begins work after the ordinance’s effective date.
Employers also have the option to “front-load” their awards of paid sick leave by providing the paid time off as one lump sum at the start of the calendar or fiscal year, rather than waiting until the employees have worked to reach their cap. In this instance, the employee must use all of his or her paid sick leave during that year or lose the unused portions the next year. If not awarded in a lump sum, employees may roll over sick time year over year, provided they do not exceed the respective caps of 40 and 24 hours of leave in any given year.
Employees are able to use paid sick leave for themselves or their family members for instances of illness, injury, medical attention, routine or specialist medical appointments, or declared public health emergencies. Under the ordinance, “family members” are defined as children, parents, spouses, domestic partners, grandparents, grandchildren, and siblings. The employer also has the flexibility to give oral permission for the employee to include other unenumerated individuals as a family member as well.
Before allowing the employee to take sick leave, the business may require a reasonable advance notice from the employee for foreseeable use of the leave. Foreseeable uses could include medical appointments or prescheduled procedures. For unforeseeable uses, such as emergencies or unexpected illnesses, the employer may require notice as soon as possible that the employee intends to use his or her paid sick leave. Upon provision of notice, employees may not be required to find a replacement to cover their shift. Further, employees are not required to disclose the reasons for use of sick leave, but businesses may mandate that the employee obtain a note from a medical provider if the employee is absent for more than three full consecutive days of leave. Businesses are able to offer more generous or alternative policies, provided that all minimum requirements are met under the ordinance.
The Pennsylvania Supreme Court was given the opportunity to review the enforceability of Pittsburgh’s ordinance after a legal challenge to the ordinance was brought by the Pennsylvania Restaurant and Lodging Association, and numerous other Pittsburgh businesses. The challengers believed that Pittsburgh’s ordinance exceeded its authority under Pennsylvania’s Home Rule Charter law, which provides that municipalities that adopt a home rule charter “shall not determine duties, responsibilities or requirements placed upon businesses, occupations and employers[.]” The Court, however, found that the ordinance fell within the City’s general police powers to regulate disease control and prevention since it encourages employees to take off of work when they are sick to avoid the spread of potentially contagious or communicable diseases. On these grounds, the Court upheld the enforceability of the ordinance. Under similar conditions, it would appear that other municipalities would be able to pass their own ordinances.
The Pennsylvania legislature considered passing legislation in response to Pittsburgh’s ordinance to preclude municipalities from passing their own ordinances, but after meeting resistance from majorities in both the House and Senate, the support for the legislation died. Pittsburgh has not yet officially implemented its ordinance, since it had been stayed pending appeals through the courts, but it will likely render a new effective date soon.
With contribution from Sarah Rothermel, J.D. Widener Law Commonwealth.