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Pittsburgh City Council Approves COVID-19-Related Paid Sick Leave

As previously reported, on December 8, 2020, the Pittsburgh City Council voted to adopt an amended version of Mayor William Peduto’s proposed ordinance to provide Pittsburgh workers with up to 80 hours of paid sick leave due to COVID-19. This new COVID-19 Paid Sick Time Ordinance (the “Ordinance”) amends the Pittsburgh Paid Sick Days Act (“PSDA”), which became effective on March 15, 2020, and is designed to provide workers with COVID-19 Paid Sick Time given the Families First Coronavirus Response Act (“FFCRA”) is set to expire at the end of the year.  

By way of background, the PSDA requires all employers of employees within the city limits of Pittsburgh to provide paid sick leave to all full- and part-time employees. Employers with 15 or more employees must provide paid sick leave, up to 40 hours (i.e., 5 days) per year, at a rate of 1 hour of leave for every 35 hours worked within the geographic boundaries of the City of Pittsburgh. Employers with less than 15 employees must also provide paid sick leave at the same accrual rate, but only up to 24 hours (i.e., 3 days) per year. Moreover, covered employees may only begin using accrued sick time after they have been employed for at least 90 days. 

The FFCRA provides mandatory paid Family and Medical Leave Act (“FMLA”) leave and paid sick leave for employees working for employers with fewer than 500 employees impacted by COVID-19. However, the FFCRA is set to expire at the end of this year, and employees are not permitted to use FFCRA-related leave after December 31, 2020. While there has been much talk in Washington about potentially expanding the FFCRA into 2021, to date, Congress has not passed any such legislation.

As a result of Congress not extending FFCRA benefits into 2021, on November 23, 2020, Mayor Peduto introduced a new COVID-19 Paid Sick Time Ordinance. On December 8, 2020, the Pittsburgh City Council voted to approve an amended version of the Ordinance amending the PSDA by adding a new chapter covering COVID-19-related paid sick leave.  The Ordinance is effective immediately, so Pittsburgh employers must fully comply with the Ordinance and provide their Pittsburgh employees with COVID-19 paid sick time without delay.

What does this mean for Employers?

Covered Employer:  This new law applies to all employers who employ 50 or more employees within the City of Pittsburgh. 

Reasons for COVID-19 Sick Time:  Employees can take COVID-19 Sick Time for any of the following 4 absences (including an inability to telework):

  1. Determination by a public official or public health authority having jurisdiction, a health care provider, or an employee’s employer that the employee’s presence on the job or in the community 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;
  2. Care of a family member of the employee due to a determination by a public official or health authority having jurisdiction, a health care provider, or the family member’s employer that the presence of the family member on the job or in the community 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;
  3. 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 medical diagnosis, care, or treatment if experiencing symptoms of an illness related to COVID-19; or
  4. Care of 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.

If these reasons for COVID-19 Sick Time sound familiar, that’s because they are! The reasons for leave above very similar (but not identical) to the reasons for leave under the FFCRA. 

Duration of COVID-19 Sick Time:  Covered employers are required to provide COVID-19 Sick Time to employees in the following amounts:

  • For employees who work 40 hours or more per week, employers must provide 80 hours of COVID-19 Sick Time.
  • For employees who work fewer than 40 hours in a week, employers must provide an amount of COVID-19 Sick Time equal to the amount of time the employee is otherwise scheduled to work or works on average in a 14-day period, whichever is greater. In the case of an employee whose schedule varies from week to week, the employer must provide employees with a number of hours equal to the average number of hours that the Employee was scheduled over the past 90 days of work, including hours for which the Employee took leave of any type. 

Note, these amounts are just the required minimums, and employers may allow employers to take COVID-19 Sick Time in greater amounts. 

How COVID-19 Sick Time Is Paid:  While the new law is silent as to this point, it incorporates the provisions of the PSDA. As such, employees must be compensated at the same base rate of pay and with the same benefits, including health care benefits, as they would have earned at the time of their use of COVID-19 Sick Time. Unlike the FFCRA, employees are not only entitled to two-thirds of their regular rate of pay for certain reasons and there are no caps to the maximum amount of COVID-19 Sick Time that can be paid. 

Immediate Availability:  There are no accrual requirements for taking COVID-19 Sick Time under this Ordinance.  However, employees must have worked for their employer for at least 90 days before they can utilize COVID-19 Sick Time.  As such, existing employees could take all 80 hours of paid sick leave starting December 8, 2020! Moreover, employees are entitled to use COVID-19 Sick Time until 1 week following the official termination or suspension of the Mayor’s public health emergency (which was put in place in March).

No Payout Upon Termination:  Employers are not required to pay out unused COVID-19 Sick Time upon termination. 

What About Existing Paid Leave Policies?:  COVID-19 Sick Time under the new law is in addition to the paid sick time required by the PSDA and employers who already provide paid sick time to their employees are prohibited from changing their paid sick time amounts under that existing policy to avoid being subject to COVID-19 Sick Time. 

No Replacement: Employers are not allowed to condition the use of COVID-19 Sick Time on employees finding a replacement to “cover” for them.

Penalties:  Employers who are found to have willfully violated the new law will be subject to a fine in an amount not to exceed $100 per offense. 

No Discrimination/Retaliation:  Consistent with the PSDA, it shall be unlawful for an employer or any other person to interfere with, restrain, or deny the exercise of, or the attempt to exercise, any right protected under the new law. Therefore, it is possible for owners, supervisors, and managers to be found individually liable for violations.

Notice:  The new law further requires employers to provide notice to the employer of the need for COVID-19 Sick Time as practicable.

Importantly, and unlike the FFCRA, the City does not provide any tax incentives for employers for providing this new COVID-19 Sick Time.

Our Employment & Employee Relations Practice is here to answer any of your questions related to the PSDA, the City’s new COVID-19 Sick Time requirements, and the FFCRA, and will continue to keep you informed on new developments impacting employers.

Disclaimer:  This post does not offer specific legal advice, nor does it create an attorney-client relationship. You should not reach any legal conclusions based on the information contained in this post without first seeking the advice of counsel.

About the Author

David E. Renner is a Principal in the Firm's Employment & Employee Relations and Wage and Hour Practice Groups. He represents and counsels employers in a wide variety of employment matters, including wage and hour audits and class/collective actions, anti-discrimination and equal employment opportunity policies, affirmative action planning, trade secret/restrictive covenants, Office of Federal Contract Compliance Programs (OFCCP) audits and investigations, Title III of the Americans with Disabilities Act (ADA) relating to public accommodations, and labor relations.

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