Employment Law Update: Pittsburgh Sick Leave Pay Ordinance Upheld

By Craig M. Brooks

The Pa. Supreme Court reinstated the Pittsburgh Paid Sick Days Ordinance that was passed in 2015. The Ordinance was due to go in effect in January 2016 but lower courts invalidated it as beyond the City's authority to regulate businesses under the Commonwealth's Home Rule. The Supreme Court, in a 4-3 decision, disagreed holding that the Ordinance mandating employers to provide designated minimum levels of paid time off for sickness was a legitimate exercise of the City's authority under the state's Disease Prevention and Control Law. The Court's majority opinion states that this law "favors local regulation as informed by the expertise of a dedicated local board or department of health over state-level regulation, and correspondingly allows local lawmakers to impose more stringent regulations than state law provides." Pittsburgh Restaurant & Lodging Assoc. et al. v. City of Pittsburgh, 57-64 WAP 2017, at *28 (Pa. July 17, 2019).

The Supreme Court sent the case back to the Commonwealth Court for further proceedings, so the Ordinance isn't yet in effect. But, based on this decision it likely will go into effect at some point. So, we provide the following description on the Ordinance so affected employers will have time to prepare.

The Pittsburgh Ordinance requires that employers located within City limits give workers a minimum of one hour paid sick leave for every 35 hours worked, with a cap of 40 hours per year for employers with 15 or more employees, or a cap of 24 hours per year for employers with one to 14 employees. Employees can use their accrued sick time once they have at least 90 days of service with the employer. The Ordinance does not require employers to pay employees for unused sick days at the end of employment (but employees rehired within 6 months get their prior unused sick leave reinstated). Employers already providing paid leave, such as those with PTO policies, are in compliance if they provide at least as much paid time off as is available under this Ordinance. This will encourage some employers who have not done so to adopt PTO policies (which essentially combine vacation and sick time into one pot). The Ordinance also allows employees to use paid sick time to care for an ill family member (immediate family & step-family, including domestic partner, along with grandparent and grandchild). The paid sick time can be taken in hourly increments (or smaller increments if the employer's pay system uses smaller increments). However, employers may require a doctor's note or other reasonable documentation for sick time lasting three or more consecutive full work days. This implies that an employer cannot ask for a doctor's note for a shorter absence; but, that may well be a subject of future litigation.

Employers are now mandated to give written notice that employees are entitled to sick time, the amount of sick time, and the terms of its use, that retaliation against employees who request or use sick time is prohibited, and that each employee has the right to file a complaint with the Office of the City Controller (or a Department or entity designated by the Office of the Mayor) if sick time as required by this Ordinance is denied by the employer or the employee is retaliated against for requesting or taking sick time. Complaints of violations of the Ordinance may be filed with the City Controller within six months of the violation. An employer that willfully violates the notice requirements of this Ordinance is subject to a civil fine of up to $100 for each separate offense. Employers must make and keep for two years a record of employee's hours and sick time taken. Also, an employer may not require disclosure of details relating to an employee's or an employee's family member's medical condition as a condition of providing paid sick time under this Ordinance. An employer must treat as confidential any health information about an employee or an employee's family member and not disclose it, except to the affected employee or with the written permission of the affected employee per applicable Federal and State medical privacy laws. Finally, the Ordinance does not lessen or bar employer policies or practices that are more generous.

Over the past year, some Pennsylvania legislators have sought to block local ordinances such as this by proposing legislation that would preempt local employment laws. These bills have not gone far, with the principal argument against them being that they would also ban local employment discrimination provisions that are more protective than state law, such as ordinances banning discrimination on the basis of sexual orientation or gender identity.

If you have any questions on this or any other aspect of employment law, please contact the author or another Houston Harbaugh, P.C. employment law attorney.