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PRINTER'S NO. 340
THE GENERAL ASSEMBLY OF PENNSYLVANIA
HOUSE BILL
No.
368
Session of
2021
INTRODUCED BY A. DAVIS, KRAJEWSKI, HILL-EVANS, SANCHEZ, ZABEL,
GUENST, DALEY, HOWARD, PASHINSKI, CIRESI, CONKLIN, HARRIS,
BRADFORD, DEASY, SIMS, HOHENSTEIN, KIRKLAND, DeLUCA, O'MARA,
GALLOWAY AND WARREN, FEBRUARY 3, 2021
REFERRED TO COMMITTEE ON LABOR AND INDUSTRY, FEBRUARY 3, 2021
AN ACT
Imposing duties on employers for the health and safety of
employees relating to limiting exposure to COVID-19; and
providing for right to bring own personal protective
equipment, for notification of illness in the workplace, for
whistleblower protection and for enforcement.
The General Assembly of the Commonwealth of Pennsylvania
hereby enacts as follows:
Section 1. Short title.
This act shall be known and may be cited as the COVID-19
Pandemic Front Line Employee Health and Safety Protection Act.
Section 2. Definitions.
The following words and phrases when used in this act shall
have the meanings given to them in this section unless the
context clearly indicates otherwise:
"COVID-19." The coronavirus disease 2019, an infectious
disease caused by severe acute respiratory syndrome coronavirus
2 that was first identified during December 2019 in Wuhan,
China.
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"Employee." As follows:
(1) An individual employed by an employer.
(2) The term includes any of the following:
(i) An independent contractor.
(ii) An individual who performs work for an employer
through a temporary services or staffing agency.
"Employer." As follows:
(1) An individual or entity that acts directly or
indirectly in the interest of a person in relation to
employing an individual, including contracting for the
services of an employee.
(2) More than one entity may be the employer of an
employee, including in circumstances where:
(i) one entity controls, is controlled by or is
under common control with another employer; or
(ii) one entity exerts control over the operations
of another employer.
(3) The term includes any of the following:
(i) An operator of a county assistance office.
(ii) A health care facility, as defined in section
103 of the act of July 19, 1979 (P.L.130, No.48), known
as the Health Care Facilities Act.
(iii) A health care or emergency responder employer.
(iv) An employer in another sector.
"Employer in another sector." An employer that is not a
health care or emergency responder employer.
"Health care or emergency responder employer." An employer,
whether public or private, of any of the following:
(1) A health care or long-term care sector employee.
(2) A skilled nursing employee.
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(3) A home health care employee.
(4) A paramedic or emergency medical services employee.
(5) A medical transport employee.
(6) An employee who provides services as a firefighter
or other emergency responder.
(7) A corrections or detention officer or a secure
treatment facility employee.
(8) A mortuary or laboratory employee.
"Personal protective equipment." Gloves, respirators, face
masks, gowns, face shields and other protective equipment
designed to be worn by individuals to prevent or contain contact
with, or prevent the transmission of, a communicable illness or
the pathogens that cause a communicable illness.
Section 3. Protecting workers from COVID-19 exposure.
(a) Health care or emergency responder employer.--
(1) A health care or emergency responder employer shall:
(i) Comply with the precautions mandated by the
Department of Health and all relevant health alerts,
advisories and updates issued by the health alert network
of the Department of Health.
(ii) Incorporate, as appropriate, guidelines issued
by the Centers for Disease Control and Prevention and the
National Institute for Occupational Safety and Health
designed to prevent the transmission of COVID-19 in
health care settings.
(2) A health care or emergency responder employer shall
afford to each employee, during each shift worked,
appropriate levels of personal protective equipment.
(3) A health care or emergency responder employer shall
maintain on file, and make available to an employee upon
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request, a written plan developed by the employer to provide
sufficient personal protective equipment to all employees.
(4) Employees of a health care or emergency responder
employer shall be afforded confidential access to employer
supported mental health benefit coverage, including, but not
limited to:
(i) Mental health hotline information.
(ii) Trained mental health counselors.
(iii) Psychologists.
(iv) Psychiatrists.
(5) To the greatest extent possible, a health care or
emergency responder employer shall suspend or limit in-person
services by shifting to virtual assistance working standards.
(6) A health care or emergency responder employer shall
test its employees for COVID-19 at least one time for every
40 hours worked per week. The results of a test shall be
shared first with the employee to whom the test was
administered.
(7) An employee of a health care or emergency responder
employer shall notify the employer and either the Department
of Health or the department of health of the county in which
the employer is located of any positive test results relating
to the employee and shall comply with any applicable
quarantine, isolation or other health-related order
concerning positive COVID-19 results as issued by the
Department of Health or county department of health.
(b) Employer in another sector.--
(1) An employer in another sector shall adhere to
guidance issued by the Department of Health entitled "Order
of the Secretary of the Pennsylvania Department of Health
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Directing Public Health Safety Measures for Businesses
Permitted to Maintain In-person Operations" issued April 15,
2020, or any subsequent order from the Department of Health
relating to safe working conditions during the time period
covered by the proclamation of disaster emergency issued by
the Governor on March 6, 2020, published at 50 Pa.B. 1644
(March 21, 2020), and any renewal of the state of disaster
emergency.
(2) Notwithstanding paragraph (1), an employer in
another sector shall comply with the following:
(i) To the greatest extent possible, an employer in
another sector shall suspend or limit in-person services
by shifting to virtual assistance working standards.
(ii) An employer in another sector shall maintain
six feet between employees and between employees and
customers, by using one or more of the following
measures:
(A) Implementing flexible worksites, such as
telework.
(B) Implementing flexible work hours, such as
staggered shifts.
(C) Increasing physical space between employees
at the worksite.
(D) Increasing physical space between employees
and customers, such as drive-through ordering and
delivery of goods or services, or partitions.
(E) Implementing flexible meeting and travel
options, such as postponement of nonessential
meetings or events.
(F) Downsizing operations.
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(G) Delivering services remotely, such as by
telephone, video or Internet.
(H) Delivering products through curbside pick-up
or delivery.
(3) An employer in another sector shall provide hand
sanitizer in fixed work stations at multiple locations and
shall provide employees in fixed locations with opportunities
to wash hands with soap and water.
(4) An employer in another sector shall provide
employees with face masks made of cotton or other material
approved by the Department of Health.
(5) An employer in another sector shall clean and
disinfect all frequently touched surfaces in the workplace,
such as workstations, keyboards, telephones, handrails and
doorknobs.
(6) If an employee of an employer in another sector is
confirmed to be infected with COVID-19, the employer in
another sector shall inform fellow employees of their
possible exposure to COVID-19 in the workplace and shall
maintain confidentiality as required by the Americans with
Disabilities Act of 1990 (Public Law 101-336, 104 Stat. 327).
(7) If an employee of an employer in another sector is
sick and suspected or confirmed to have COVID-19, the
employer in another sector shall follow the Centers for
Disease Control and Prevention cleaning and disinfection
recommendations.
Section 4. Right to bring own personal protective equipment.
(a) General rule.--Employees shall have the right to bring
and wear their own personal protective equipment on the job on a
voluntary basis if personal protective equipment is not provided
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by their employer.
(b) Construction.--Nothing in this section shall be
construed to relieve an employer of the duty to provide personal
protective equipment under section 3.
Section 5. Notification of illness in workplace.
(a) Duty of employers.--Consistent with guidelines issued by
the Centers for Disease Control and Prevention for COVID-19, an
employer shall promptly notify employees when the employer
learns that an employee or other individual who has been present
in the workplace is diagnosed with COVID-19 or shows symptoms of
COVID-19 infection.
(b) Duty of Department of Health.--If the Department of
Health or the department of health of a county learns that an
individual who has been present in a workplace of an employer,
such as a customer, passenger, guest or employee, has been
diagnosed with COVID-19 or shows symptoms of COVID-19 infection,
the Department of Health or county department of health shall
notify the employer and require the employer to notify the
employees.
Section 6. Whistleblower protection.
(a) General rule.--It shall be unlawful for an employer to
discharge, threaten or otherwise retaliate or discriminate
against an employee regarding compensation or other terms or
conditions of employment because the employee:
(1) makes a complaint to the Department of Labor and
Industry regarding the employer's failure to comply with
section 3; or
(2) participates in an investigation conducted by the
Department of Labor and Industry regarding the employer's
failure to comply with section 3.
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(b) Actions.--An employee who suffers retaliation or
discrimination prohibited under this section 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.
(c) Relief.--If an employee prevails in an action commenced
under this section, 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 7. Enforcement.
(a) Civil penalties.--The Department of Labor and Industry
may impose the following civil penalties for a violation of
section 3:
(1) For a first violation, no more than $2,500.
(2) For a second violation, no more than $3,500.
(3) For a third or subsequent violation, no more than
$5,000.
(b) Payment.--A civil penalty under this section shall be
paid to the Department of Labor and Industry.
Section 8. Effective date.
This act shall take effect immediately.
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