On December 8, 2020, Pittsburgh City Council unanimously approved an emergency paid sick leave ordinance which temporarily provides paid leave to certain employees who cannot work due to circumstances arising from the COVID-19 pandemic.  The full text of the ordinance can be found here:  https://pittsburgh.legistar.com/LegislationDetail.aspx?ID=4701797&GUID=2D2C3863-DF9E-4127-A514-976420C4A7FD&Options=ID%7cText%7c&Search&FullText=1.  The bill awaits signature from Mayor Bill Peduto, and its requirements will take effect immediately upon its enactment.

The ordinance provides that employers with 50 or more employees shall provide up to 80 hours of sick time for COVID-19 related qualifying reasons to employees who work 40 hours or more per week.  Part-time employees working fewer than 40 hours per week shall be provided sick time in an amount equal to their regularly scheduled time or average hours worked in a 14-day period.  Note that coverage under the Federal Families First Coronavirus Response Act (FFCRA) was limited to only employers with fewer than 500 employees.  As such, larger Pittsburgh employers previously excluded from FFCRA coverage must now adhere to the below requirements for paid leave benefits.

COVID-19 sick time is to be provided immediately, without the need for any waiting period, to any employee who has been employed by an employer for the previous 90-days.  Furthermore, COVID-19 sick time must be provided in addition to any paid sick leave provided by the employer pursuant to Pittsburgh’s “Paid Sick Days Act,” which mandates a grant of sick time for certain employees working within the City of Pittsburgh.

COVID-19 sick time is provided to all eligible employees unable to work (or telework) for the following absences related to COVID-19:

  1. Determination by a public official, public health authority, health care provider, or 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;
  2. Care of a family member of the employee due to a determination by a public official, public health authority, 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;
  3. An employee’s need to: (a) self-isolate and care for oneself due to a COVID-19 diagnosis; (b) self-isolate and care for oneself because the employee is experiencing symptoms of COVID-19; (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 a COVID-19 diagnosis; (b) is self-isolating due to experiencing symptoms of COVID-19; (c) needs medical diagnosis, care, or treatment if experiencing symptoms of an illness related to COVID-19.

The ordinance was introduced in light of the upcoming expiration of the FFCRA leave requirements on December 31, 2020.  To the extent that federal or state laws require employers to provide paid leave or paid sick time related to COVID-19, employers may substitute leave under the federal or state law for its obligations under the ordinance, to the extent they coincide and the relevant federal or state law permits such concurrent use of paid leave.

The emergency COVID-19 paid sick leave requirement is temporary and will expire a week after Pittsburgh’s pandemic emergency expires.  The pandemic emergency was recently extended through January 12, 2021.

The attorneys at Margolis Edelstein are ready and available to answer any questions that you may have when responding to employment concerns arising from the COVID-19 pandemic and any specific questions or for general guidance about how this new law may impact your business. We welcome your further inquiries.

 

UPDATES TO INTERPRETATIONS OF FFCRA

On March 28, 2020, the U.S. Department of Labor published a series of questions and answers on its website, providing additional guidance for interpretation of the Families First Coronavirus Response Act (FFCRA).  The Q&A section can be accessed in its entirety here, and we recommend a review of all questions and answers.

Notably, the Department is taking a restrictive approach to eligibility for emergency paid sick leave and emergency family leave in light of the various shelter-in-place and shutdown of non-life sustaining businesses issued by Governor Wolf in Pennsylvania, Governor Murphy in New Jersey, and other similar orders in other states.  According to the newly issued guidance, if the employer is not open for business due to the aforementioned orders and/or business conditions arising from the COVID-19 pandemic, an employee is not eligible for FFCRA leave, but may be eligible for unemployment compensation.  This approach applies to any worksite closing, either permanent or temporary, and notwithstanding the date of closure, as well as employees working reduced hours, and furloughed employees.

Accordingly, if your company has closed or suspended operations to comply with the government order, then there is no legal requirement to offer employees either of the two types of leave created by the FFCRA.

 

AMENDMENT TO THE PENNSYLVANIA UNEMPLOYMENT COMPENSATION LAW

On March 27, 2020, Governor Tom Wolf signed into law an amendment to the Pennsylvania Unemployment Compensation law which requires employers to notify employees of their potential eligibility to obtain unemployment compensation upon any type of separation, including layoff, termination, and otherwise.

While neither the Office of Unemployment Compensation nor Department of Labor has put out a model notice, the law goes into effect immediately and requires employers provide, at minimum, the following information: (1) availability of unemployment compensation benefits to workers who are unemployed and who meet the requirements of this act; (2) ability of an employee to file an unemployment compensation claim in the first week that employment stops or work hours are reduced; (3) availability of assistance or information about an unemployment compensation claim on the Department’s website or toll-free number (1-888-255-4728); and (4) that the employee will need to provide his/her full legal name, social security number, and, if not a legal resident of the United States, proof of legal authorization to work in the United States.

The good news for employers is that this new legislation also provides employers relief from unemployment compensation charges if the termination, layoff, or furlough was related to the COVID-19 outbreak.

Margolis Edelstein continues to monitor legal changes related to the COVID-19 outbreak, and we are always available to answer any questions you may have regarding the effects of this global pandemic.

FAMILIES FIRST CORONAVIRUS RESPONSE ACT

 On March 18, 2020, President Donald J. Trump signed into law H.R. 6201, the “Families First Coronavirus Response Act” (“FFC Act”) which, among other things, temporarily expanded the Family Medical Leave Act of 1993 (“FMLA”) to include paid leave in certain scenarios, and further created emergency paid leave to certain employees who cannot work due to circumstances from the COVID-19 pandemic.  The full text of the FFC Act can be found here: https://www.congress.gov/116/bills/hr6201/BILLS-116hr6201enr.pdf.  The FFC Act will become effective April 2, 2020 and expire December 31, 2020.

 

EMERGENCY FMLA LEAVE (“EFMLA”)

EFMLA is a temporary expansion of FMLA job-protected leave that provides paid leave to a limited category of employees.  Unlike the FMLA, which requires that employees are employed by their employer for 12 calendar months before they become eligible for FMLA’s protections, employees may be eligible for EFMLA after working for at least 30 calendar days.  The law makes no distinction between full-time and part-time employees, and does not specify that the employee meet any hours of service requirement before becoming eligible.

Similarly, the EFMLA applies to a broader category of employers than FMLA. As the legislation currently stands, the EFMLA applies to employers with fewer than 500 employees. However, the EFMLA authorizes the Secretary of Labor to issue regulations to exclude certain health care providers and emergency responders from the definition of eligible employee under Section 110(a)(1)(A), and to exempt small businesses with fewer than 50 employees from the requirements of Section 102(a)(1)(F) when the imposition of that section’s requirements would jeopardize the viability of the business as a going concern. What those regulations will provide remains to be seen. The EFMLA further eliminates the FMLA’s requirement that covered employers employ 50 or more ‘employees within a 75-mile radius.

Unlike the FMLA’s leave entitlement based on, among other things, a serious health condition, the EFMLA applies only to those employees who are “unable to work (or telework) due to a need for leave to care for the son or daughter under 18 years of age of such employee if the school or place of care has been closed, or the child care provider of such son or daughter is unavailable, due to a public health emergency.”  Notably, prior versions of the bill which were ultimately removed would have extended FMLA’s protections to health conditions related to the COVID-19 pandemic.

Under the EFMLA, an employee with a “qualified need” is eligible for up to twelve (12) weeks of job-protected leave, the first 10 days of which can be unpaid, and the remaining leave paid by the employer at an amount “not less than two-thirds of an employee’s regular rate of pay.”  Importantly, EFMLA caps the paid benefit at $200 per day or $10,000 in the aggregate for any one employee.  Moreover, employees are allowed to substitute accrued paid leave (sick or otherwise) for the first ten days which are to be unpaid.

The present law is silent as to how an employee requests EFMLA, but as this is an amendment to the FMLA, we recommend that employers adhere to the notice and recordkeeping requirements established under FMLA.

 

EMERGENCY PAID SICK LEAVE ACT (“EPSLA”)

 The EPSLA provides that an employer shall provide to each employee paid sick time to the extent that the employee is unable to work (or telework) due to a need for leave because:

(1) The employee is subject to a Federal, State, or local quarantine or isolation order related to COVID–19;

(2) The employee has been advised by a health care provider to self-quarantine due to concerns related to COVID– 19;

(3) The employee is experiencing symptoms of COVID– 19 and seeking a medical diagnosis;

(4) The employee is caring for an individual subject to a local quarantine or isolation order as described above, or has been advised to self-quarantine due to concerns related to COVID-19;

(5) The employee is caring for a son or daughter of such employee if the school or place of care of the son or daughter has been closed, or the child care provider of such son or daughter is unavailable, due to COVID–19 precautions; or

(6) The employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services in consultation with the Secretary of the Treasury and Secretary of Labor

We currently interpret the “catch-all” language of subparagraph (6) to indicate Congress’s intent that the law be applied broadly to any employee who cannot work because of a condition related to or caused by the COVID-19 pandemic.

Full-time employees are entitled to 80 hours of paid sick time at the employee’s normal hourly rate, capped at $511 per day or $5,110 in the aggregate per employee, if used for reasons 1-3 above, in other words, leave for the employee’s own needs.  Leave is paid at two-thirds the employee’s rate if used for reasons 4-6 above and capped at $200 per day up to $2,000 total.  Part-time employees are paid “a number of hours equal to the number of hours that such employee works, on average, over a 2-week period.”  Unlike the EFMLA, paid sick leave is available to all employees, even if they have not yet worked for the employer for 30 days.

It is immaterial that an employer already provides a paid leave entitlement, or that its employees already have paid leave at their disposal for use prior to using EPSLA leave.  The law suggests that this leave must be offered in addition to any already accrued paid leave, and specifically prohibits an employer from requiring an employee to exhaust any accrued sick leave before using EPSLA leave.

The EPSLA provides that eligibility for this leave ceases beginning with the employee’s next scheduled workshift immediately following the termination of the need for paid sick time.  Furthermore, the EPSLA specifically provides that unused sick time does not carry over from one year to the next.  There is no provision within EPSLA which would require the employer to pay out accrued, unused EPSLA time upon separation of employment, for any reason.

The EPSLA is silent as to the procedure for an employee to request EPSLA leave, and to the mechanics of an employer’s tracking of EPSLA leave.  However, the EPSLA mandates that the Secretary of Labor must, no later than March 26, 2020, “make publicly available a model of a notice” that specifies an employer’s obligations under this law.  An employer will be required to post the model poster or its equivalent within seven days of the posting of that model notice.  We believe that the model notice will provide further guidance as to the procedures for employees to request EPSLA leave, as well as the employer’s recordkeeping obligations.

The attorneys at Margolis Edelstein are ready and available to answer any questions that you may have when responding to employment concerns arising from the COVID-19 pandemic and any specific questions or for general guidance about how this new law may impact your business. We welcome your further inquiries.

Coronavirus disease, also known as COVID-19, is a global concern that is raising numerous legal issues new to many employers. Businesses are being impacted in various ways, including employees who are exposed or get sick themselves, or decreases in demand that can necessitate a decrease in workforce. Margolis Edelstein has already begun assisting employers who are working to develop appropriate and available responses to these concerns and others related to Coronavirus and provided below is some general advice to consider.

At this time, there is no legal obligation to shut down operations or your physical location. Employee requests to work remotely or be absent out of generalized fear of catching the virus need not be granted unless that employee has an underlying health condition that could leave him/her more susceptible to serious conditions from the virus. In that scenario employers should handle the request to stay home as a request for reasonable accommodation, utilizing and engaging in the interactive process as required by the Americans with Disabilities Act (“ADA”) and the Pennsylvania Human Relations Act (“PHRA”).

Circumstances may change if an employee discloses that he or she has been diagnosed with coronavirus, or if the individual has been in contact with someone who has been diagnosed. The Occupational Health and Safety Administration (“OSHA”) does have a general duty clause which requires employers to take active steps upon known exposure of a communicable disease to protect its workforce. However, as of this writing, neither Pennsylvania nor OSHA has put forward a State Plan as to how private industry employers should respond in such a situation.

Until the appropriate State Plans are enacted, at minimum, Margolis Edelstein has recommended that employers tell the employee to self-quarantine and not report to work for at least 14 days. Additionally, employees should be notified of the possible exposure, but the quarantined employee’s identity should remain anonymous in consideration of HIPAA regulations. The employer should also consider closing the workplace until a professional cleaning agency is able to sanitize the work area. In Pennsylvania, employees may be eligible for unemployment compensation upon a temporary furlough or reduction in work hours or salary, provided the employee meets all other conditions of eligibility for unemployment compensation.

This leads to the most common advice to all employers: in the preventive stages, employers should immediately post signage reminding everyone to take common sense steps to limit exposure. The signage should remind employees to regularly wash their hands, keep a reasonable distance from large groups, and to stay home and not report to work if feeling any signs of illness.

We welcome your further inquiries.

We are pleased to announce that Margolis Edelstein Partners Christopher Tinari, Michael Miller, Emily Mahler presented How to Evaluate and Assess Employment Claims at Erie Insurance Company’s Panel Seminar on August 12, 2019 in Pittsburgh, Pennsylvania. The presentation focused on EPL claim handling and the importance of trial and resolution strategies for EPL matters. For additional information please feel free to contact Chris at ctinari@margolisedelstein.com

We are pleased to announce that Margolis Edelstein Partners Christopher Tinari, Michael Miller, Emily Mahler recently presented at Erie Insurance Company’s Panel Seminar in Pittsburgh, Pennsylvania. Chris, Mike and Emily presented on EPL claim handling and the importance of trial and resolution strategies for EPL matters. For additional information please feel free to contact Chris at ctinari@margolisedelstein.com

Margolis Edelstein is honored to be recognized by the Pennsylvania Defense Institute Board of Directors, composed of insurance industry executives and members of the defense bar practicing in the Commonwealth, as the “Defense Firm of the Year.” Our Philadelphia based partner, Jennifer Coatsworth, Esq., will be accepting the award on behalf of the firm at the 2019 Annual PDI Conference on July 11 in Bedford Springs, PA, attended also by our Altoona area partner, Mary Lou Maierhofer, our Pittsburgh partner, Emily Mahler, and partner Mohammad Ghiasuddin, also from Philadelphia. On Friday, July 12, Jen will be co-presenting on “The Ethical Case for Diversity.”

Pittsburgh Partners Thomas Gebler and Emily Mahler successfully obtained dismissal of all claims in a Civil Rights lawsuit filed in the United States District Court for the Western District of Pennsylvania against a local municipality and its mayor and officer. Plaintiff, a borough police officer, brought a lawsuit pursuant to the Rehabilitation Act and 42 U.S.C. § 1983, alleging that he was “regarded as” disabled as defined by the Act, resulting in his unlawful suspension and required submission to a psychological fitness for duty examination. Attorneys Gebler and Mahler filed a motion for summary judgment contending Plaintiff did not suffer an adverse employment action and that the borough reasonably required the fitness for duty examination for the officer in light of reports of abusive and erratic behavior by his peers in the department. The Court agreed that such requirement was a legitimate, job-related inquiry consistent with business necessity, citing case law holding that a police department’s requiring an officer to undergo such an evaluation was “entirely reasonable and even responsible” upon learning that an officer was experiencing difficulties with his mental health. The Court further dismissed Plaintiff’s hostile work environment claim on the basis of his admission that no one sincerely believed that he was actually suffering a disability, and that the alleged conduct of the borough and its officers was neither sufficiently severe or pervasive, nor related to a perceived disability.

Partners Emily Mahler, Kyle McGee, and Charlie Saul recently presented a webinar to a client [customer contact services operation] and their HR managers on Employer Hiring and Firing Practices. This live, interactive webinar has proven to be a valuable resource for employers in establishing fair, effective, and lawful hiring and firing practices. For more information or to schedule a similar web-based presentation, please contact the firm here.

The Pennsylvania Supreme Court recently clarified the definition of “current employee” for the purposes of the Pennsylvania Inspection of Employment Records Law, 43 Pa. Stat. Ann. § 1321 et seq., holding that the a recently terminated employee was not entitled to inspect her personnel file under the law because she was not “currently employed.”

In the matter of Thomas Jefferson University v. Department of Labor & Industry, the former employee was terminated from employment with the University Hospital on August 9, 2013.  One week later, she filed a request to view her personnel file, which was denied by the hospital on the basis that she was no longer an employee.  The Department of Labor granted the request to inspect the records under the Inspection of Employment Records Law, on the basis that she had requested her file within a reasonable time after the termination.  The Commonwealth Court affirmed the Department’s Order, concluding that, despite her termination a week earlier, Ms. Haubrich was an employee for the purposes of the Act at the time of her request on August 16, 2013.

The Supreme Court reversed, holding that, per the plain terms of the Act, former employees have no right to access their personnel files, regardless of how quickly following the termination they request to do so.  The Court noted the Act’s unambiguous definition of employees to include only those “currently employed, laid off with reemployment rights or on a leave of absence, and that the Act expressly excludes “any other person,” which the Court held “necessarily encompasses a person who was recently terminated.”  The Court noted that no ambiguity existed in the language of the Act which would include former employees, and further noted the commonly accepted understanding of being “currently employed” requires that a person “be maintained in another’s service now, at the present time.”

This decision removes any ambiguity as to when a former employee’s right to inspect their personnel file under the Act expires.  With this ruling, once an employee is terminated from employment, their right to inspect their personnel file under the Act is also terminated, and the employer is under no obligation to allow the employee to access their file.