Important New Updates to Paid Leave Requirements

Important New Updates to Paid Leave Requirements

Both the federal Department of Labor and the City of Philadelphia recently took action on paid leave requirements to address COVID-19 related issues. Employers need to know about these rule changes and update any internal policies as needed.

The Department of Labor issued a new Families First Coronavirus Response Act (FFCRA) paid leave regulation that will affect some employers with less than 500 employees and may require an update to existing internal FFCRA leave procedures.  The new regulation was a response to the U.S. District Court for the Southern District of New York’s ruling that parts of the original rule are invalid. The rule went into effect on September 16, 2020, and it changes or clarified the following points:

Work Availability —To be eligible to take either FFCRA paid sick leave or family/medical leave, a person must be an active employee. Further, the FFCRA leave qualifying event must be the only reason why the person cannot work.

Definition of Healthcare Provider—The FFCRA law allows employers of “healthcare providers” to exempt those employees from the law’s paid leave provisions.   The new rule narrows the definition of a “healthcare provider” significantly, so employers using that exemption need to check to see if it is still fully applicable.

Intermittent Leave—The new clarifies that employees must seek employer permission before taking FFCRA leave periodically.

Leave Documentation —People can provide leave documentation to their employer as soon as practicable. An employer cannot require it as a condition of allowing leave.

Leave Notification— The new regulations specify that employers can ask employees for advance notice if their need to take FFCRA leave is foreseeable.

Philadelphia-based employers also need to know that the city recently temporarily expanded its existing paid leave requirements.  The new law addresses COVID-related public health emergencies for people who are not covered by the FFCRA’s paid leave rules.  Bill No. 200303 establishes that effective immediately, qualified employers and other “hiring entities” provide two weeks of “public health emergency leave” to eligible employees under certain conditions. Like FFCRA’s paid leave provisions, this measure expires on December 31, 2020.

To benefit from this expansion of the city’s existing paid sick requirements, a person must work in the city for at least 40 hours in one year for one or more “hiring entities” that do not have to comply with the FFCRA. The definition of “hiring entities” is broad – it covers everything from companies with more than 500 employees to private individuals that employ people in their residences. “Covered individual” applies broadly too. Beyond traditional employees, it includes almost any individual performing work for a hiring entity unless the hiring entity can demonstrate certain conditions apply.

In addition to providing the leave, applicable “hiring entities” (those that do not have to comply with the federal FFCRA’s paid leave requirements) must send their employees a “notice of rights” within 15 days after the amended ordinance becomes law (October 2, 2020). If there is a physical worksite, the notification can happen there.  If a workplace is closed or employees have a telework arrangement, employers may provide information electronically.

Finally, while Philadelphia-based hiring entities need to take steps to address this measure now, keep in mind that it is temporary.  Just like the FFCRA paid leave requirements, it will expire on December 31, 2020.

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