Bill No. 08047400.pdf

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City of Philadelphia
City of Philadelphia - 1 -
City Council
Chief Clerk's Office
402 City Hall
Philadelphia, PA 19107

BILL NO. 080474

Introduced May 8, 2008

Councilmembers Clarke and Greenlee

Referred to the
Committee on Law and Government

AN ORDINANCE

Enacting a new Chapter 9-3300, entitled "Promoting Healthy Families and Workplaces,"
to provide that certain employees are entitled to paid sick leave, all under certain terms
and conditions.

THE COUNCIL OF THE CITY OF PHIILADELPHIA HEREBY ORDAINS:

SECTION 1. A new Chapter 9-3300 of The Philadelphia Code, entitled "Promoting
Healthy Families and Workplaces," is hereby enacted, to read as follows:

CHAPTER 9-3300. PROMOTING HEALTHY FAMILIES AND WORKPLACES.

§9-3301. Findings.

Whereas the Council finds that:

(1) Most workers in the City of Philadelphia will at some time during the year

need temporary time off from work to take care of their own health needs or the health

needs of members of their families.

(2) There are many workers employed in the City of Philadelphia who do not have

to any paid sick days, or who have an inadequate number of paid sick days, to care for

their own health needs or the health needs of members of their families. Approximately

44% of workers in the Philadelphia area do not have paid sick days. Nationally, 49 % of

all workers do not have paid sick days and only 30% of workers may use those sick days

to care for sick children.

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(3) Low-income workers are significantly less likely to have paid sick time than

other members of the workforce. Nationally, only one in five low income workers (20%)

have access to paid sick time.

(4) Providing workers time off to attend to their own health care and the health

care of family members will ensure a healthier and more productive workforce in the City

of Philadelphia.

(5) Paid sick days will have a positive effect on the public health of the City of

Philadelphia by allowing sick workers the occasional option of staying at home to care

for themselves when ill, thus lessening their recovery time and reducing the likelihood of

spreading illness to other members of the workforce and to the public.

(6) Paid sick days will allow parents to provide personal care for their sick

children. Parental care makes children's recovery faster, prevents more serious

illnesses, and improves children's overall mental and physical health.

(7) Providing a minimal number of paid sick days is affordable for employers and

good for business.

(8) Paid sick days are good for business. Employers who provide paid sick days

have greater employee retention and avoid the problem of workers coming to work sick

and lowering productivity.

(9) Nationally, almost 60% of those who provide unpaid care to an adult family

member or friend must combine their caregiving with employment in order to provide

financially for their family member and themselves.

(10) Employees frequently lose their jobs or are disciplined with suspensions or

demerits for taking sick days to care for sick family members or even to recover from

their own illnesses.

(11) Workers in jobs with high public contact, such as service workers and

restaurant workers, are very unlikely to have paid sick days. Because of the lack of paid

sick days, these workers have no choice but to come to work when they are ill, thereby

increasing the risk of passing illnesses on to co-workers and customers. For example,

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approximately 78% of food service and accommodation workers in the Philadelphia area

do not have paid sick days. Employers can be held liable for the costs of diseases spread

by their workers who lack paid sick days.

(12) Many employers would like to provide their workers with paid sick days but

fear being at a competitive disadvantage because other employers do not.

§9-3302. Purposes.

The purposes of this Chapter are:

(1) To ensure that all workers employed in the City of Philadelphia can address

their own health needs and the health needs of their families by requiring employers to

provide a minimum level of paid sick days including time for family care;

(2) To diminish public and private health care costs in the City of Philadelphia

by enabling workers to seek early and routine medical care for themselves and their

family members;

(3) To protect workers employed in the City of Philadelphia from losing their jobs

while they use sick days to care for themselves or their families;

(4) To safeguard the public welfare, health, safety and prosperity of the people of

and visitors to the City of Philadelphia; and

(5) To accomplish the purposes described in paragraphs (1) (4) in a manner

that is feasible for employers.

§9-3303. Definitions.

(1) "Agency" means Mayor's Office of Labor Relations, or such other office as
the Mayor or Managing Director shall designate.
(2) "Employee" is any individual as defined in 43 P.S. § 333.103(h) who is

employed within the geographic boundaries of the City of Philadelphia. "Employee"

does not include independent contractors, State or Federal employees.

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(3) "Employer" is as defined in 43 P.S. § 333.103(g).

(4) "Employ" is as defined in 43 P.S. § 333.103(f).

(5) "Philadelphia" is defined as the geographic boundaries of the City of

Philadelphia.

(6) "Small Business" is defined as an employer that employs 10 or less

employees.

(7) "Family member" is defined as

(a) A biological, adopted or foster child, stepchild or legal ward or a child

to whom the employee stands in loco parentis.

(b) A biological, foster, stepparent or adoptive parent or legal guardian of

an employee or an employee's spouse or a person who stood in loco parentis when the

employee was a minor child.

Pennsylvania.

(d) A grandparent or spouse of a grandparent;

(e) A grandchild;

(f) A biological, foster, or adopted sibling or spouse of a biological, foster

or adopted sibling;

(g) A domestic partner or life partner;

(h) Any other individual related by blood or affinity whose close

association with the employee is the equivalent of a family relationship.

(8) "Health care professional" means any person licensed under Federal or

Pennsylvania law to provide medical or emergency services, including but not limited to

doctors, nurses and emergency room personnel.

(9) "Paid sick time" or "paid sick days" means time that is compensated at the

same hourly rate and with the same benefits, including health care benefits, as the

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employee normally earns during hours worked and is provided by an employer to an

employee for the purposes described in Section 9-3305 of this Chapter.

(10) "Retaliatory personnel action" means the discharge, suspension, or

demotion by an employer of an employee or any other adverse action taken by an

employer against an employee.

§9-3304. Accrual of Paid Sick Time.

(1) All employees who are employed in Philadelphia for more than 56 hours in a

year have the right to paid sick time as provided in this Chapter.

(2) All employees shall accrue a minimum of one hour of paid sick time for every

30 hours worked in Philadelphia. Employees will not accrue more than 72 hours of paid

sick time in a calendar year, unless the employer selects a higher limit. Employees of

small businesses will not accrue more than 40 hours of paid sick time in a calendar year

unless the employer selects a higher limit.

(3) Employees who are exempt from overtime requirements under 29 U.S.C. §

213(a)(1) of the Federal Fair Labor Standards Act will be assumed to work 40 hours in

each work week for purposes of paid sick time accrual unless their normal work week is

less than 40 hours, in which case paid sick time accrues based upon that normal work

week.

(4) Paid sick time as provided in this Section shall begin to accrue at the

commencement of employment.

(5) Employees shall be entitled to use accrued paid sick time beginning on the

30th calendar day following commencement of their employment. After the 30th

calendar day of employment, employees may use paid sick time as it is accrued.

(6) Paid sick time shall be carried over to the following calendar year; however,

an employee's use of paid sick time provided under this Chapter in each calendar year

shall not exceed 72 hours for employees of employers with eleven or more employees and

shall not exceed 40 hours for employees of small businesses.

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(7) Any employer with a paid leave policy, such as a paid time off policy, who

makes available an amount of paid leave sufficient to meet the accrual requirements of

this Section that may be used for the same purposes and under the same conditions as

paid sick time under this Section is not required to provide additional paid sick time.

However any employer with a paid leave policy, such as a paid time off policy, may not

rely upon that leave to meet its obligations under this Section if employees suffer a loss of

vacation time as a consequence of utilizing sick time.

(8) Nothing in this Section shall be construed as requiring financial or other

reimbursement to an employee from an employer upon the employee's termination,

resignation, retirement, or other separation from employment for accrued paid sick time

that has not been used.

(9) When there is a separation from employment and the employee is rehired

within 12 months of separation by the same employer, previously accrued paid sick time

that had not been used shall be reinstated. Further, the employee shall be entitled to use

accrued paid sick time and accrue additional sick time at the re-commencement of

employment.

(10) At its discretion, the employer may loan sick time to the employee in advance

of accrual by such employee.

§9-3305. Use of Paid Sick Time.

(1) Paid sick time shall be provided to an employee by an employer for:

(a) An employee's mental or physical illness, injury or health condition;

an employee's need for medical diagnosis, care, or treatment of a mental or physical

illness, injury or health condition; an employee's need for preventive medical care;

(b) Care of a family member with a mental or physical illness, injury or

health condition; care of a family member who needs medical diagnosis, care, or

treatment of a mental or physical illness, injury or health condition; care of a family

member who needs preventive medical care.

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(2) Paid sick time shall be provided upon the oral request of an employee. When

possible, the request shall include the expected duration of the absence.

(3) When the use of paid sick time is foreseeable, the employee shall make a good

faith effort to provide notice of the need for such time to the employer in advance of the

use of the sick time and shall make a reasonable effort to schedule the use of sick time in

a manner that does not unduly disrupt the operations of the employer.

(4) Accrued sick time may be used in the smaller of hourly increments or the

smallest increment that the employer's payroll system uses to account for absences or use

of other time.

(5) For sick time of more than 3 consecutive days, an employer may require

reasonable documentation that the sick time is covered by subsection (1).

Documentation signed by a heath care professional indicating that sick time is necessary

shall be considered reasonable documentation. An employer may not require that the

documentation explain the nature of the illness. If an employer chooses to require

documentation for sick time and the employee does not have health insurance, the

employer is responsible for paying all of out of pocket expenses the employee incurs in

obtaining the documentation. If the employee does have health insurance, the employer

is responsible for paying any costs charged to the employee by the health care provider

for providing the specific documentation required by the employer.

(6) An employer may not require, as a condition of providing paid sick time under

this Chapter, that the employee search for or find a replacement worker to cover the

hours during which the employee is on paid sick time.

§9-3306. Exercise of Rights Protected; Retaliation Prohibited.

(1) 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 this

Chapter.

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(2) An employer shall not take retaliatory personnel action or discriminate

against an employee because the employee has exercised rights protected under this

Chapter. Such rights include but are not limited to the right to use paid sick time

pursuant to this Chapter; the right to file a complaint or inform any person about any

employer's alleged violation of this Chapter; the right to cooperate with the Agency in its

investigations of alleged violations of this Chapter; and the right to inform any person of

his or her potential rights under this Section.

(3) It shall be unlawful for an employer's absence control policy to count paid

sick time taken under this Chapter as an absence that may lead to or result in discipline,

discharge, demotion, suspension, or any other adverse action.

(4) Protections of this Section shall apply to any person who mistakenly but in

good faith alleges violations of this Section.

(5) There shall be a rebuttable presumption of unlawful retaliation under this

Section whenever an employer takes adverse action against a person within 90 days of

when that person:

(a) files a complaint with the Agency or a court alleging a violation of any

provision of this Section;

(b) informs any person about an employer's alleged violation of this

Section;

prosecution of any alleged violation of this Section;

(d) opposes any policy, practice, or act that is unlawful under this Section;

(e) informs any person of his or her rights under this Section.

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§9-3307. Notice and Posting.

(1) Employers shall give notice that employees are entitled to paid sick time, the

amount of paid sick time, and the terms of its use guaranteed under this Chapter, that

retaliation against employees who request or use paid sick time is prohibited and that

each employee has the right to file a complaint or bring a civil action if sick time as

required by this Section is denied by the employer or the employee is retaliated against

for requesting or taking paid sick time.

(2) Employers may comply with this Section by supplying each of their employees

with a notice in English and in any language that is the first language spoken by at least

5% of the employer's workforce that contains the information required in subsection (1).

(3) Employers may comply with this Section by displaying a poster in a

conspicuous and accessible place in each establishment where such employees are

employed which contains in English and in any language that is the first language spoken

by at least 5% of the employer's workforce, all information required under subsection

(1).

(4) The Agency shall create and make available to employers posters that contain

the information required under subsection (1) for their use in complying with this

subsection.

(5) An employer who willfully violates the notice and posting requirements of this

Section shall be subject to a civil fine in an amount not to exceed $100 for each separate

offense.

§9-3308. Employer Records.

Employers shall retain records documenting hours worked by employees and paid sick

time taken by employees, for a period of five years, and shall allow the Agency access to

such records, with appropriate notice and at a mutually agreeable time, to monitor

compliance with the requirements of this Chapter. When an issue arises as to an

employee's entitlement to paid sick time under this Section, if the employer does not

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maintain or retain adequate records documenting hours worked by the employee and

paid sick time taken by the employee, or does not allow the Agency reasonable access to

such records, it shall be presumed that the employer has violated the Chapter, absent

clear and convincing evidence otherwise.

§9-3309. Regulations.

The Agency shall be authorized to coordinate implementation and enforcement of this

Section and shall promulgate appropriate guidelines or regulations for such purposes.

§9-3310. Section 8. Enforcement.

(1) An employee or other person may report to the Agency any suspected

violation of this Chapter.

(2) The Agency is authorized to take appropriate steps to enforce this Section.

(3) The Agency, the City Attorney, any person aggrieved by a violation of this

Chapter, or any entity a member of which is aggrieved by a violation of this Chapter may

bring a civil action in a court of competent jurisdiction against an employer violating this

Chapter. Such action may be brought by a person aggrieved by a violation of this

Section without first filing an administrative complaint.

(a) Upon prevailing in an action brought pursuant to this Section,

aggrieved persons shall recover the full amount of any unpaid sick time plus any actual

damages suffered as the result of the employer's violation of this Chapter plus an equal

amount of liquidated damages. Aggrieved persons shall also be entitled to reasonable

attorney's fees.

(b) Upon prevailing in an action brought pursuant to this Section,

aggrieved persons shall be entitled to such legal or equitable relief as may be

appropriate to remedy the violation, including, without limitation, reinstatement in

employment, back pay and injunctive relief.

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(c) The City Attorney may bring a civil action to enforce this Chapter. The

City Attorney may seek injunctive relief. In addition to injunctive relief, or in lieu

thereof, for any employer or other person found to have willfully violated this Chapter,

the City Attorney may seek to impose a fine payable to the City.

(d) The statute of limitations for a civil action brought pursuant to this

Section shall be for a period of 2 years from the date the alleged violation occurred.

(e) Actions brought pursuant to this Section may be brought as a class

action pursuant to the laws of Pennsylvania.

§9-3311. Confidentiality and Nondisclosure.

An employer may not require disclosure of details relating to an employee's medical

condition or the medical condition of an employee's family member as a condition of

providing paid sick time under this Chapter. If an employer possesses health information

about an employee or employee's family member, such information shall be treated as

confidential in accordance with Pennsylvania state laws and Federal laws and not

disclosed except to the affected employee or with the permission of the affected employee.

§9-3312. Encouragement of More Generous Sick Time Policies; No Effect on More

Generous Policies.

(1) Nothing in this Chapter shall be construed to discourage or prohibit an

employer from the adoption or retention of a paid sick time policy more generous than

the one required herein.

(2) Nothing in this Chapter shall be construed as diminishing the obligation of an

employer to comply with any contract, collective bargaining agreement, employment

benefit plan or other agreement providing more generous sick time to an employee than

required herein.

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(3) Nothing in this Chapter shall be construed as diminishing the rights of public

employees regarding paid sick time or use of sick time as provided in Pennsylvania laws.

§9-3313. Other Legal Requirements.

This Chapter provides minimum requirements pertaining to paid sick time and shall not

be construed to preempt, limit, or otherwise affect the applicability of any other law,

regulation, requirement, policy, or standard that provides for greater accrual or use by

employees of sick time, whether paid or unpaid, or that extends other protections to

employees.

§9-3314. Severability.

If any provision of this Chapter or application thereof to any person or circumstance is

judged invalid, the invalidity shall not affect other provisions or applications of the

Chapter which can be given effect without the invalid provision or application, and to

this end the provisions of this Chapter are declared severable.

SECTION 2. Effective Date. This Ordinance will take effect 90 days following final

approval.

Explanation:

[brackets] indicate matter deleted
Italics indicate new matter added