Amendment 5591 to House Bill 2412 P.N. 3720, Regular Session 2019-2020

H2412B3720A05591 SFL:CMD 05/12/20 #90 A05591

AMENDMENTS TO HOUSE BILL NO. 2412

Sponsor: SENATOR COSTA

Printer's No. 3720

Amend Bill, page 1, line 21, by striking out the period after

"provisions" and inserting

, for COVID-19 hazardous duty work, for isolation or quarantine

orders, for public health emergency leave and for employee

protections.

Amend Bill, page 2, lines 2 and 3, by striking out "an

article" and inserting

articles

Amend Bill, page 6, by inserting between lines 22 and 23

ARTICLE I-B

COVID-19 HAZARDOUS DUTY WORK

Section 101-B. Work-related hazardous duty.

(a) Presumption of work-related hazardous duty.--

Notwithstanding any other provision of law or regulation to the

contrary, an individual employed by a life-sustaining business

or occupation who contracts, has symptoms of or is otherwise

exposed to an infectious disease, including COVID-19

(coronavirus) or any other novel virus or infectious disease

during the declaration of a disaster emergency under 35 Pa.C.S.

§ 7301 (relating to general authority of Governor), the

declaration of an epidemic or a public health emergency in this

Commonwealth by the Governor or a pandemic, which results in a

period of hospitalization, quarantine, isolation or other

control measures due to such infection or exposure, shall

establish a presumption that the individual ' s medical condition

or inability to work is work-related hazardous duty.

(b) Hazardous duty deemed on-duty time.--An individual with

an established presumption of work-related hazardous duty under

subsection (a) may not be required to use sick time, vacation

time, personal time or any other accrued paid time off or

contractual time off to cover the period of incapacitation or

inability to work.

compensation.--

(1) Notwithstanding any provision of the act of December

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5, 1936 (2nd Sp.Sess., 1937 P.L.2897, No.1), known as the

Unemployment Compensation Law, an individual with an

established presumption of work-related hazardous duty under

subsection (a) shall be eligible and qualified for

unemployment compensation for the duration of the period of

incapacitation or inability to work.

(2) Notwithstanding any provision of the act of June 2,

1915 (P.L.736, No.338), known as the Workers' Compensation

Act, an individual with an established presumption of work-

related hazardous duty under subsection (a) shall be eligible

and qualified for workers ' compensation for all medical costs

related to such infection or exposure.

(d) Applicability.--Notwithstanding subsection (a), this

section shall apply to individuals who work for a non-life-

sustaining business or occupation that receives a waiver from

the Department of Community and Economic Development authorizing

the non-life-sustaining business or occupation to continue

business operations during the period of time that a declaration

of a disaster or public health emergency is effective.

Section 102-B. Definitions.

The following words and phrases when used in this article

shall have the meanings given to them in this section unless the

context clearly indicates otherwise:

" COVID-19." The novel coronavirus, otherwise known as COVID-

19.

" Individual employed by a life-sustaining business or

occupation. " Front-line employees and other individuals

employed by or under contract with a life-sustaining business or

entity who work during the declaration of a disaster emergency

or a public health emergency. The term shall include, but not

limited to:

(1) First responders, including law enforcement

officers, firefighters, emergency medical technicians and

other individuals who are considered to be first responders.

(2) Corrections officers.

(3) Emergency services dispatchers.

(4) Ambulance drivers.

(5) Retail workers, including restaurant, food services

and grocery store workers, cashiers and other support staff.

(6) Food and agriculture workers.

(7) Medical, health care and public health workers,

including doctors, nursing professionals, physician

assistants and paramedics, and other support staff.

(8) Pharmacists and any cashiers and other pharmacy

support staff.

(9) Home healthcare workers.

(10) Public utility workers, including workers engaged

in providing telecommunications, energy, water and wastewater

services and public works.

(11) Any employee of State or local government.

(12) Trash collectors.

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(13) Warehouse workers.

(14) Any other individual employed by a life-sustaining

business or occupation who is required to work during the

declaration of a disaster emergency or public health

emergency.

" Infectious disease. " A disease which is caused by a

microorganism, such as a bacterium, virus, or protozoan, which

is not normally found in the human body, and which is capable of

causing infection. Some, but not all, infectious diseases are

contagious, meaning they can spread from person to person,

including COVID-19 or the coronavirus. Other infectious diseases

can spread from animals or insects to humans, but not from

person to person.

" Life-sustaining business or occupation. " A list of

businesses or occupations, as designated by the Governor, which

performs or conducts a range of vital operations, functions and

services that are essential to assisting the Commonwealth and

its political subdivisions in protecting people and their

communities while ensuring continuity of functions critical and

essential to public health and safety, as well as economic and

homeland security, and which should continue normal operations,

appropriately modified to account for the Centers for Disease

Control and Prevention and the Department of Health workforce

and customer protection guidance, during the declaration of a

disaster or public health emergency.

"Public health emergency." An emergency declaration by the

Governor of an occurrence or imminent threat of a disease or

condition of critical public health importance with the

following characteristics:

(1) Is believed to be caused by any of the following:

(i) the emergence and spread of a novel or

previously controlled or eradicated infectious disease;

(ii) an infectious disease epidemic in this

Commonwealth or a pandemic.

(2) Poses a high probability of any of the following in

the affected population:

(i) Death.

(ii) Serious or long-term disabilities.

(iii) Widespread exposure to an infectious disease,

which poses a significant risk of substantial present or

future harm to the public health and safety.

ARTICLE I-C

ISOLATION OR QUARANTINE ORDERS

Section 101-C . Employees subject to isolation or quarantine.

(a) Prohibition.--Notwithstanding any other law to the

contrary, an employer in this Commonwealth may not terminate or

retaliate or discriminate against an employee who is complying

with any isolation or quarantine order or an employee who is the

primary caregiver of a family member who is complying with any

isolation or quarantine order.

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(b) Reinstatement.--

(1) An employee who meets the criteria specified under

subsection (a), other than an employee in a temporary

position, shall be reinstated to a position of like

seniority, status and pay after being released from isolation

or quarantine if the employee:

(i) receives a certificate of completion of

isolation or quarantine issued by a public official, the

Department of Health or a local health facility;

(ii) is still qualified to perform the duties of the

position; and

(iii) submits an application for reemployment to the

employer within 90 days after being released from

isolation or quarantine.

(2) Paragraph (1) shall not apply if an employer's

circumstances have changed during the isolation or quarantine

period to make it unreasonable for the employer to comply

with paragraph (1).

(1) If an employer fails or refuses to comply with the

provisions of this section, an individual may bring a civil

action against the employer in a court of competent

jurisdiction to compel the employer to:

(i) comply with the provisions of this section; or

(ii) compensate the individual for any loss of wages

or benefits suffered by reason of the employer's failure

or refusal to comply with the provisions of this section.

(2) An individual who brings a civil action under

paragraph (1) may be represented by counsel, or upon

submitting an application to the Office of Attorney General,

request that the Office of Attorney General represent the

individual in accordance with section 204 of the act of

October 15, 1980 (P.L.950, No.164), known as the Commonwealth

Attorneys Act. If the Office of Attorney General is

reasonably satisfied that the individual has been aggrieved

by the employer in violation of this section, the Attorney

General may represent the individual.

(3) No fees or court costs shall be assessed against an

individual who brings a civil action under paragraph (1).

Attorney fees shall be awarded to the counsel of the

individual awarded damages in a civil action under paragraph

(1) or the Office of Attorney General if the Office of

Attorney General represents the individual.

ARTICLE I-D

PUBLIC HEALTH EMERGENCY LEAVE

SUBARTICLE A

PRELIMINARY PROVISIONS

Section 101-D. Definitions.

The following words and phrases when used in this article

shall have the meanings given to them in this section unless the

context clearly indicates otherwise:

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"Department." The Department of Labor and Industry of the

Commonwealth.

"Employee." An individual who is employed by an employer

doing business in this Commonwealth.

"Employer." As defined in the act of January 17, 1968

(P.L.11, No.5), known as The Minimum Wage Act of 1968.

"Family member." Any of the following:

(1) A biological, adopted or foster child, stepchild or

legal ward, a child of a domestic partner or a child to whom

the employee stands in loco parentis, regardless of age.

(2) A biological, foster, stepparent or adoptive parent

or legal guardian of an employee or an employee's spouse or

domestic partner or a person who stood in loco parentis when

the employee or the employee's spouse or domestic partner was

a minor child.

(3) A person to whom the employee is legally married

under the laws of any state or a domestic partner of an

employee as registered under the laws of any state or

political subdivision.

(4) A grandparent, grandchild or sibling, whether of a

biological, foster, adoptive or step relationship, of the

employee or the employee's spouse or domestic partner.

(5) A person for whom the employee is responsible for

providing or arranging care, including helping that

individual obtain diagnostic, preventive, routine or

therapeutic health treatment.

(6) Any other individual related by blood or whose close

association with the employee is the equivalent of a family

relationship.

"Health care professional." A health care center or person,

including a corporation, university or other educational

institution licensed or approved by the Commonwealth to provide

health care or professional medical services as a physician,

certified nurse midwife, podiatrist, hospital, nursing home or

birth center or any other person licensed under Federal or State

law to provide medical or emergency services.

"Paid sick time." Time that is compensated at the same

hourly rate and with the same benefits, including health care

benefits, as the employee normally earns during hours worked and

is provided by an employer to an employee for the purposes of

section 110-D, but in no case shall this hourly amount be less

than the hourly amount under The Minimum Wage Act of 1968.

"Public health emergency." A threat to public health or

sufficient threat to be the subject of an emergency or disaster

declaration made by a Federal, State or local official with the

authority to declare the emergency.

"Public health emergency leave." Paid sick leave which must

be provided by an employer to an employee affected by a public

health emergency.

"Retaliatory personnel action." Denial of a right guaranteed

under this article or any actual or threatened discharge,

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suspension, demotion, reduction of hours, reporting an

employee's suspected citizenship or immigration status, or the

suspected citizenship or immigration status of a family member

of the employee to a Federal, State or local department, or any

other adverse action against an employee for the exercise of any

right guaranteed herein, including any sanctions against an

employee who is the recipient of public benefits for rights

guaranteed under this article . Retaliation includes interference

with or punishment for in any manner participating in or

assisting an investigation, proceeding or hearing under this

article .

SUBARTICLE B

EMERGENCY LEAVE

Section 110-D. Establishment of public health emergency leave.

(a) Requirement.--Each employer of the Commonwealth shall

provide paid sick time to employees whose residence or

employment is affected by a public health emergency. An employer

shall provide the paid sick time in addition to any other leave

benefits available to employees by contract or policy. Public

health emergency leave shall be made available in accordance

with the following:

(1) An employee who normally works 40 or more hours in a

week shall be provided at least 112 hours of paid sick time.

(2) An employee who works fewer than 40 hours in a week

shall be provided an amount of paid sick time equal to the

amount of time the employee is otherwise scheduled to work or

works on average in a 14-day period.

(b) Immediate provisions.--The public health emergency leave

required under subsection (a) shall be provided to employees

immediately for the use of employees under section 113-D,

regardless of how long the employee has been employed.

leave from the first date of the emergency or disaster

declaration until two weeks following the termination of the

declaration.

Section 111-D Notice.

Immediately after a declaration of a public health emergency

within the Commonwealth, an employer shall provide notice to all

employees of the eligibility to receive public health emergency

leave if the employee's residence or place of employment is part

of the area affected by the public health emergency.

Section 112-D. Ongoing threat.

If a public health emergency was declared before and remains

in effect on the effective date of this section, public health

emergency leave under this article shall be:

(1) provided to employees under section 110-D on the

effective date of this section; and

(2) made available retroactively to employees employed

on the effective date of this section.

Section 113-D. Use of public health emergency leave.

(a) Uses.--Nothing in this article shall be construed to

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require an employee to use public health emergency leave if the

employee is able to perform work remotely. An employee may elect

to use public health emergency leave for any of the following

purposes regardless of the ability to work remotely:

(1) To care for oneself because:

(i) The employee is diagnosed with a communicable

illness related to a public health emergency.

(ii) The employee is experiencing symptoms of a

communicable illness related to a public health

emergency.

(iii) To seek or obtain medical diagnosis, care or

treatment if experiencing symptoms of a communicable

illness related to a public health emergency.

(iv) To seek preventive care concerning a

communicable illness related to a public health

emergency.

(2) To care for a family member who:

(i) Is self-isolating due to being diagnosed with a

communicable illness related to a public health

emergency.

(ii) Is self-isolating due to experiencing symptoms

of a communicable illness related to a public health

emergency.

(iii) Needs medical diagnosis, care or treatment if

experiencing symptoms of a communicable illness related

to a public health emergency.

(iv) Is seeking preventive care concerning a

communicable illness related to a public health

emergency.

(3) To adhere to a determination by a Federal, State or

local public official, a health authority having jurisdiction

or a health care provider that the employee's presence on the

job or in the community would jeopardize the health of others

because of the employee's exposure to a communicable illness

or exhibiting of symptoms, regardless of whether the employee

has been diagnosed with a communicable illness.

(4) To provide care to a family member due to a

determination by a Federal, State or local public official, a

health authority having jurisdiction or a health care

provider that the family member's presence on the job or in

the community would jeopardize the health of others because

of the family member's exposure to a communicable illness or

exhibiting of symptoms, regardless of whether the family

member has been diagnosed with a communicable illness.

(5) Closure of the employee's place of business by order

of a Federal, State or local public official or health

authority or at the discretion of the employer due to a

public health emergency.

(6) An employee's inability to work or telework while

under an individual or general Federal, State or local

quarantine or isolation order, including a shelter-in-place

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order, related to the public health emergency.

(7) Care of a child or other family member when the care

provider of the individual is unavailable due to a public

health emergency or if the child's or family member's school

or place of care has been closed by a Federal, State or local

public official or at the discretion of the school or place

of care due to a public health emergency, including if a

school or place of care is physically closed but providing

instruction remotely.

(b) Notice.--The employee shall provide notice to the

employer of the need for paid sick time as practicable only when

the need for paid sick time is foreseeable and the employer's

place of business has not been closed.

condition of an employee's taking paid sick time, that the

employee search for or find a replacement worker to cover the

hours during which the employee is using paid sick time.

(d) Increments.--Paid 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.

(e) Documentation.--Documentation may not be required for

paid sick time under this article .

Section 114-D. Additional leave.

If an employee is entitled to paid sick time under Federal

law for any of the purposes under this article , paid sick time

under this article shall be in addition to that paid sick leave

to the extent permitted by Federal law.

Section 115-D. Subrogation.

An employer may not require an employee to use other paid

leave provided by the employer to the employee before the

employee uses the public health emergency leave under this

article.

Section 116-D. Overtime.

Employees who are exempt from overtime requirements under 29

U.S.C. § 213(a)(1) (relating to exemptions) of the Fair Labor

Standards Act of 1938 (52 Stat. 1060, 29 U.S.C. § 201 et seq.)

will be assumed to work 40 hours in each work week for purposes

of paid sick time under this article unless their normal work

week is less than 40 hours, in which case paid sick time under

this article is based upon that normal work week.

Section 117-D. Termination.

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 paid sick time that has not

been used.

SUBARTICLE C

ENFORCEMENT

Section 121-D. Duties of department.

The department shall:

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(1) Have authority to enforce this article.

(2) Be authorized to coordinate implementation and

enforcement of this article.

(3) Promulgate appropriate guidelines or regulations for

this article .

(4) Post the regulations and information about the

rights and duties of employees and employers under this

article on the department's publicly accessible Internet

website.

Section 122-D. Enforcement.

This article shall be enforced under section 9 of the act of

January 17, 1968 (P.L.11, No.5), known as The Minimum Wage Act

of 1968.

Section 123-D. Exercise of rights protected and 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

article.

(2) An employer may not take retaliatory personnel

action or discriminate against an employee or former employee

because the person has exercised rights protected under this

article. These rights include the following:

(i) The right to request or use paid sick time under

this article.

(ii) The right to file a complaint with the

department or courts or inform any person about any

employer's alleged violation of this article.

(iii) The right to participate in an investigation,

hearing or proceeding or cooperate with or assist the

department in its investigations of alleged violations of

this article.

(iv) The right to inform any person of his or her

potential rights under this article.

(3) It shall be unlawful for an employer's absence

control policy to count paid sick time taken under this

article 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 article.

(5) There shall be a rebuttable presumption of unlawful

retaliatory personnel action under this section whenever an

employer takes adverse action against a person within 90 days

of when that person:

(i) files a complaint with the department or a court

alleging a violation of any provision of this article;

(ii) informs any person about an employer's alleged

violation of this article;

(iii) cooperates with the department or other

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persons in the investigation or prosecution of any

alleged violation of this article;

(iv) opposes any policy, practice or chapter that is

unlawful under this article; or

(v) informs any person of his or her rights under

this article.

Section 124-D. Notice and posting.

(a) Notice.--Unless an employer's place of business is

closed due to a public health emergency, an employer shall give

employees written notice of their rights under this article, at

the commencement of employment or by the effective date of this

section, whichever is later, and annually thereafter. The notice

shall contain the following information:

(1) That employees are entitled to public health

emergency leave.

(2) The amount of public health emergency leave

guaranteed under this article.

(3) The terms of use of public health emergency leave

guaranteed under this article.

(4) That retaliatory personnel action against employees

who request or use public health emergency leave is

prohibited.

(5) That each employee has the right to file a complaint

or bring a civil action if public health emergency leave as

required by this article is denied by the employer or the

employee is subjected to retaliatory personnel action for

requesting or taking public health emergency leave.

(6) The contact information for the department where

questions about rights and responsibilities under this

article can be answered.

(b) Languages.--The notice required in subsection (a) shall

be in English, Spanish and any other language that is the first

language spoken by at least 20% of the employer's workforce, if

the notice has been translated and provided by the department.

available to the employee, the amount of paid sick time taken by

the employee to date in the year and the amount of pay the

employee has received as paid sick time shall be recorded in or

on an attachment to the employee's regular paycheck.

(d) Display.--Unless an employer's place of business is

closed due to a public health emergency, an employer shall

display a poster that contains the information required in

subsection (a) in a conspicuous and accessible place in each

establishment where the employees are employed. In cases where

the employer does not maintain a physical workplace, or an

employee telecommutes or performs work through a web-based

platform, notification shall be sent via electronic

communication or a conspicuous posting on the web-based

platform. The poster displayed shall be in English, Spanish and

any language that is deemed appropriate by the department, if

the poster has been provided by the department.

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(e) Templates.--The department shall create and make

available to employers model notices and posters that contain

the information required under subsection (a) for employers' use

in complying with subsections (a) and (d).

(f) Waiver.--If an employee's business is closed due to a

public health emergency, the notice and posting requirements

under subsections (a) and (d) shall be waived for the period in

which the place of business is closed.

(g) Violations.--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.

SUBARTICLE D

ADMINISTRATION

Section 131-D. Employer records.

(a) Records.--For a period of three years, an employer shall

retain records documenting hours worked by employees, paid sick

time and public health emergency leave taken by employees and

allow the department access to these records, with appropriate

notice and at a mutually agreeable time, to monitor compliance

with the requirements of this article.

(b) Presumption.--If an issue arises as to an employee's

entitlement to public health emergency leave under this section,

if the employer does not maintain or retain adequate records

documenting hours worked by the employee, paid sick time and

public health emergency leave taken by the employee or does not

allow the department reasonable access to such records, it shall

be presumed that the employer has violated this article, absent

clear and convincing evidence otherwise.

Section 132-D. Confidentiality and nondisclosure.

Any health or safety information possessed by an employer

regarding an employee or employee's family member must:

(1) be maintained on a separate form and in a separate

file from other personnel information;

(2) be treated as confidential medical records; and

(3) not be disclosed except to the affected employee or

with the express permission of the affected employee.

Section 133-D. No effect on more generous policies or laws.

Nothing in this article shall be construed as:

(1) Discouraging or prohibiting an employer from the

adoption or retention of a paid sick time policy more

generous than the one required in this article.

(2) Diminishing the obligation of an employer to comply

with a contract, collective bargaining agreement, employment

benefit plan or other agreement providing more generous paid

sick time to an employee than required under this article.

(3) Diminishing the rights of public employees regarding

paid sick time or use of paid sick time as provided in the

laws of this Commonwealth relating to public employees.

(4) Superseding any provision of a local law that

provides greater rights to paid sick time than the rights

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established under this article.

Section 134-D. Other legal requirements.

This article provides minimum requirements pertaining to paid

sick time and may not be construed to preempt, limit or

otherwise affect the applicability of any other law, regulation,

requirement, policy or standard that provides for a greater

amount, accrual or use by employees of paid sick time or that

extends other protections to employees.

Section 135-D. Public education and outreach.

The department shall develop and implement a multilingual

outreach program to inform employees, employers, parents, elder

care providers and persons who are under the care of a health

care provider about the availability of public health emergency

leave under this article.

ARTICLE I-E

EMPLOYEE PROTECTIONS

Section 101-E. Definitions.

The following words and phrases when used in this article

shall have the meanings given to them in this section unless the

context clearly indicates otherwise:

"COVID-19." The novel coronavirus, otherwise known as COVID-

19.

"Employee." An individual who is not able to work remotely

during employment for an employer.

"Employer." Any business industry or trade operating with a

physical location in this Commonwealth, regardless of whether

that physical location is open to the public.

"Infectious disease." A disease which is caused by a

microorganism, such as a bacterium, virus, or protozoan, which

is not normally found in the human body, and which is capable of

causing infection. Some, but not all, infectious diseases are

contagious, meaning they can spread from person to person,

including COVID-19 or the coronavirus. Other infectious diseases

can spread from animals or insects to humans, but not from

person to person.

"Public health emergency." An emergency declaration by the

Governor of an occurrence or imminent threat of a disease or

condition of critical public health importance with the

following characteristics:

(1) Is believed to be caused by any of the following:

(i) the emergence and spread of a novel or

previously controlled or eradicated infectious disease;

(ii) an infectious disease epidemic in this

Commonwealth or a pandemic.

(2) Poses a high probability of any of the following in

the affected population:

(i) Death.

(ii) Serious or long-term disabilities.

(iii) Widespread exposure to an infectious disease,

which poses a significant risk of substantial present or

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future harm to the public health and safety.

Section 102-E. Employee personal protective equipment.

Notwithstanding any other provision of law, during a public

health emergency, an employer shall provide employees with

appropriate personal protective equipment, including the

provision of face masks to and use by employees, that complies

with guidance issued by the Centers for Disease Control and

Prevention for businesses to plan and respond to COVID-19 or any

other infectious disease, and the guidance on business practices

issued by the Department of Health to address COVID-19 or any

other infectious disease.

Section 103-E. Protection from retaliation.

(a) General rule.--It shall be unlawful for an employer to

discharge, threaten or otherwise retaliate against an employee

regarding compensation or other terms or conditions of

employment because the employee:

(1) makes a complaint regarding noncompliance with

section 102-E to the employer or a governmental entity; or

(2) participates in an investigation regarding

noncompliance with section 102-E.

(b) Action.--An employee who suffers retaliation or

discrimination in violation of this article may bring an action

in a court of common pleas in accordance with established civil

procedures of this Commonwealth. The action must be brought

within three years from the date the employee knew of the

retaliation or discrimination.

under this article, the employee shall be entitled to the

following relief:

(1) Reinstatement of the employee, if applicable.

(2) Restitution equal to three times the amount of the

employee's wages and fringe benefits calculated from the date

of the retaliation or discrimination.

(3) Reasonable attorney fees and the cost of the action.

(4) Any other legal and equitable relief as the court

deems appropriate.

Section 104-E. Penalties.

An employer operating in this Commonwealth that fails to

comply with the requirements of section 102-E shall be:

(1) Subject to a civil penalty of $1,000 for each

finding of noncompliance.

(2) Immediately closed and may not be permitted to

reopen until the employer is in compliance.

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