May 2022

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Pennsylvania - Allegheny County announces paid sick leave effective date

01/06/22

Author: ADP Admin/Tuesday, January 4, 2022/Categories: Compliance Corner , State Compliance Update, Pennsylvania

Background:
Allegheny County approved an Ordinance that requires certain employers to provide paid sick leave (PSL). The Ordinance was to take effect 90 days after the county made employer-notice material available through its website.

Update: Allegheny County has posted its paid sick leave ordinance, noticeguidelines and FAQs to its website. Although the Ordinance required employers’ notice obligations to begin immediately once the law was approved, and for the other provisions of the ordinance to take effect 90 calendar days after the notice was posted, the County has changed the effective date of all parts of the ordinance to be December 15, 2021.

Note: The Ordinance is silent on its interplay with the Pittsburgh Paid Sick Days Act, which went into effect in March 2020 and provides paid sick leave to eligible employees who work in the City of Pittsburgh, which is located in Allegheny County. Further guidance on this issue is anticipated.

Covered Employers:

Employers with 26 or more employees must provide PSL to employees who work in Allegheny County.

Accrual:

Employees are entitled to accrue at least one hour of PSL for every 35 hours worked in Allegheny County (up to 40 hours of PSL per calendar year). Current employees begin accruing PSL on the effective date of the Ordinance. Employees hired after the effective date begin to accrue PSL on their date of hire. All employees may begin using accrued PSL on the 90th calendar day after they start working for the employer.

Note: Under the Ordinance, exempt employees are assumed to work 40 hours per week unless their normal workweek is less than 40 hours.

Carryover:

Employers that provide 40 hours of PSL each January 1 (commonly known as frontloading) aren't required to carry over unused PSL to the following year. Otherwise, employers must allow employees to carry over up to 40 hours of unused PSL.

Use of Leave:

Under the Ordinance, an employee may use their PSL for:

  • The care, medical diagnosis, or treatment of their own, or a family member's, mental or physical illness, injury, or health condition; and preventive medical care;
  • The closure of their place of business by order of a public official due to a public health emergency or an employee's need 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
  • The care for a family member when it has been determined by the health authorities or a health care provider that their presence in the community would jeopardize the health of others because of their exposure to a communicable disease, regardless of whether the family member has contracted the disease.

Covered family members:

Family members include a grandchild, domestic partner, biological, foster, or adopted sibling; or:

  • An employee's child (biological, adoptive, or foster child, step-child, legal ward, domestic partner's child, or a child to whom the employee stands in place of a parent);
  • A biological, foster, adoptive, or step-parent, or legal guardian of an employee or an employee's spouse or domestic partner or a person who stood in place of a parent when the employee was a minor child;
  • A person to whom the employee is legally married under the laws of any state;
  • A grandparent or spouse or domestic partner of a grandparent; or
  • Any individual for whom the employee has requested and received permission from the employer to care.

Pay During Leave:

Employers must compensate employees with at least at the same base rate of pay and with the same benefits (including health care) as an employee would have earned. This excludes compensation for lost tips or commissions.

Employers aren't required to provide financial or other reimbursements for an employee's unused, accrued PSL if an employee is terminated, resigns, retires, or undergoes other separation from employment. However, if the separated employee is rehired within six months by the same employer, the employer must reinstate any previously accrued PSL and allow the employee to use and accrue upon their rehire date.

Employer Requirements:

Notice:

Effective immediately, employers must provide employees with written notice (to be provided by the county and posted on its website) on their entitlement to PSL, the amount of PSL, the terms of its use, that retaliation against employees who request or use PSL is prohibited, and that each employee has the right to file a complaint with the county if the employer denies or retaliates against them for using PSL required under the Ordinance.

Recordkeeping:

Employers must retain records that document hours worked and PSL taken by employees for a period of two years.

Notification Policy:

An employer may set their own notification policy on how soon before an employee's shift the employee must make their request for PSL, provided that:

  • The policy is reasonable and doesn't obstruct an employee's use of PSL.
  • If the employer doesn't maintain their own notification policy, the employee's request must be provided at least one hour before their shift.
  • If the need for PSL isn't foreseeable by the employee, the employee makes a good-faith effort to notify the employer as soon as possible.

Employee Notice and Documentation:

Employees must request PSL from their employer and, when possible, include the request the anticipated duration of the absence.

If an employee knows of their need to use PSL in advance, such as a scheduled appointment with a healthcare provider, employers may require reasonable advance notice as long as it doesn't exceed seven days prior to the start of the anticipated PSL.

An employee must make a reasonable effort to schedule PSL in a manner that doesn't unduly disrupt business operations.

Reasonable Documentation:

For PSL that lasts three (or more) full, consecutive days, employers may require an employee to present reasonable documentation that the PSL was used for a purpose covered under the Ordinance. Documentation that is signed by a healthcare professional indicating the necessity of the PSL must be considered reasonable documentation. An employer may not require an explanation containing the precise nature of the illness.

Prohibited Employer Actions:

Under the Ordinance, employers are prohibited from:

  • Requiring an employee to use accrued PSL time to search for or find a replacement worker to cover the time that they take PSL as a condition for providing PSL; or
  • Having a control policy to count PSL taken under the Ordinance as an absence that may lead to or result in discipline, discharge, demotion, suspension, or any other adverse action unless the employee doesn't follow the required notification and documentation procedures.

Nonretaliation and enforcement:

Employers are prohibited from retaliating or discriminating against an employee who exercises their rights under the Ordinance. Employers will be presumed to have retaliated if they take adverse action against an employee within 90 days of an employee:

  • Filing a complaint with the county or a court alleging a violation;
  • Informing anyone about, or cooperating in the investigation or prosecution of, an employer's alleged violation;
  • Opposing any policy, practice, or act that is unlawful under the Ordinance; or
  • Informing anyone of their rights under the Ordinance.

Confidentiality and Nondisclosure:

Employers are prohibited from requiring the disclosure of details relating to an employee's or an employee's family member's medical condition as a condition of providing PSL. Such information is confidential and may only be disclosed with the employee's written permission under applicable federal and state privacy laws.

Compliance Recommendation:

Employers in Allegheny, PA, should review their policies and procedures to ensure compliance with the paid sick leave requirements under the Ordinance. Please contact your dedicated service professional with any questions.

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Tags: 01/06/22

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