PRINTER'S NO. 119
THE GENERAL ASSEMBLY OF PENNSYLVANIA
SENATE BILL
No.
13
Session of
2021
INTRODUCED BY HUGHES, MUTH, FONTANA, STREET, KEARNEY,
CAPPELLETTI, TARTAGLIONE, BLAKE, SCHWANK, COSTA, KANE AND
COMITTA, JANUARY 28, 2021
REFERRED TO BANKING AND INSURANCE, JANUARY 28, 2021
AN ACT
Providing for mandatory Statewide employer-paid sick leave for
employees and for civil penalties and remedies.
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 Healthy
Employee and Healthy Workplace Act.
Section 2. Scope of act.
This act relates to promoting healthy families and workplaces
by establishing a mandatory employer-paid sick leave policy in
this Commonwealth.
Section 3. 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:
"Department." The Department of Labor and Industry of the
Commonwealth.
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"Employee." As the term "employe" is defined in section 3 of
the Minimum Wage Act. The term does not include an employee
covered by a collective bargaining agreement if the agreement
expressly provides for:
(1) The wages, hours of work and working conditions of
employees.
(2) Paid sick leave or a paid leave or paid time off
policy that permits the use of sick leave for employees.
(3) Final and binding arbitration of disputes concerning
the application of the paid sick leave provisions of the
collective bargaining agreement.
"Employer." As defined in section 3 of the Minimum Wage Act.
"Family member." Any of the following:
(1) A child, stepchild or legal ward or a child to whom
the employee stands in loco parentis, notwithstanding the age
or dependency status of the child.
(2) A biological, adoptive or foster parent, stepparent
or legal guardian of an employee or the employee's spouse or
a person who stood in loco parentis when the employee was a
minor.
(3) A spouse or domestic partner.
(4) A grandparent.
(5) A grandchild.
(6) A sibling.
"Minimum Wage Act." The act of January 17, 1968 (P.L.11,
No.5), known as The Minimum Wage Act of 1968.
"Municipality." A city, borough, incorporated town or
township. The term includes a municipality operating under 53
Pa.C.S. Pt. III Subpt. E (relating to home rule and optional
plan government).
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"Paid sick leave." Time that is compensated at the rate
provided under section 5 and is provided by an employer to an
employee under this act.
"Secretary." The Secretary of Labor and Industry of the
Commonwealth.
Section 4. Paid sick leave.
(a) Requirement.--Each employer in this Commonwealth must
provide paid sick leave to an employee for, at a minimum, the
following purposes:
(1) Diagnosis, care or treatment of an existing health
condition of, or preventive care for, an employee or
employee's family member.
(2) Diagnosis, treatment, care, counseling or other
assistance for a physical, mental or emotional injury
suffered by the employee or the employee's family member due
to an act of abuse as defined in 23 Pa.C.S. § 6102(a)
(relating to definitions) or sexual violence as defined in 42
Pa.C.S. § 62A03 (relating to definitions).
(3) A public health or public safety emergency involving
the employee or the employee's family member.
(b) Availability.--An employer must provide paid sick leave
to an employee beginning on the day after the date the employee
has worked for the employer for at least 30 days within a year
from the commencement of employment.
(c) Accrual and use.--
(1) Paid sick leave shall accrue to an employee at the
rate of one hour per every 30 hours worked, beginning at the
commencement of employment. An employee who is exempt from
overtime requirements of section 5 of the Minimum Wage Act as
an administrative, executive or professional employee shall
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be deemed to work 40 hours per workweek for the purposes of
this act, unless the employee's normal workweek is less than
40 hours, in which case the employee shall accrue paid sick
leave based upon the normal workweek.
(2) An employer may limit an employee's use of paid sick
leave to 56 hours or seven days in each year of employment.
(3) Unless otherwise approved by the employer, an
employee may not use accrued paid sick leave prior to 91 days
of employment, after which day the employee may use paid sick
leave as the paid sick leave is accrued.
(4) Accrued paid sick leave shall carry over to the
following year of employment, except that an employer may
limit an employee's total accrual of paid sick leave to 80
hours or 10 days annually.
(5) An employer may, at the employer's discretion:
(i) Provide the full amount of paid sick leave to
the employee at the beginning of each year.
(ii) Lend paid sick leave to an employee in advance
of accrual with proper documentation.
(6) An employee may determine the amount of paid sick
leave the employee needs to use, except that an employer may
set a reasonable minimum increment, not to exceed two hours,
for the use of paid sick leave.
(7) An employee must provide reasonable advance written
or verbal notification to the employer if the need to use
paid sick leave is foreseeable. If the need to use paid sick
leave is unforeseeable, the employee must provide written or
verbal notice of the need for the leave to the employer as
soon as practicable.
(8) An employer may not require, as a condition of using
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paid sick leave, an employee to search for or find a
replacement worker to cover the hours or days during which
the employee uses paid sick leave.
(9) An employer may require an employee to provide
documentation from the individual providing treatment or care
under subsection (a) if the employee is absent for three or
more consecutive days.
(d) Exemption.--An employer shall not be required to provide
additional paid sick leave under this act if the following
conditions are met:
(1) On the effective date of this section the employer
has a paid leave policy or paid time off policy.
(2) The employer makes available an amount of leave that
may be used for the same purposes and under the same
conditions as specified in this section.
(3) The policy does either of the following:
(i) Satisfies the accrual, carryover and use
requirements of this section.
(ii) At the beginning of each calendar year,
provides an employee with no less than 56 hours or seven
days of paid sick leave, or equivalent paid leave or paid
time off. An employer may prorate the amount of paid sick
leave or equivalent paid leave or paid time off provided
to an employee in the employee's first year of employment
based on the employee's date of hire.
(e) Notice.--
(1) An employer must provide each employee with written
notice that sets forth the amount of paid sick leave
available or paid time off leave an employer provides in lieu
of sick leave in the manner prescribed under this act. The
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department may impose penalties on the employer for failure
to provide notice in accordance with this subsection.
(2) Each employer must display a poster, developed by
the department, in a conspicuous place within each workplace
of the employer, that states all of the following:
(i) That an employee is entitled to accrue, request
and use paid sick leave.
(ii) The amount of sick leave provided for by this
act.
(iii) The terms of use of paid sick leave.
(iv) That retaliation or discrimination against an
employee who requests paid sick leave or uses paid sick
leave, or both, is prohibited, and that an employee has
the right under law to file a complaint with the
department against an employer who retaliates or
discriminates against the employee.
Section 5. Rate of pay.
The rate of pay for paid sick leave shall be the greater of
the minimum wage as set forth in section 4 of the Minimum Wage
Act or the employee's hourly wage. If the employee in the 90
days of employment before using accrued sick leave had different
hourly pay rates, was paid by commission or piece rate or was a
nonexempt salaried employee, the rate of pay shall be calculated
by dividing the employee's total wages, not including overtime
premium pay, by the employee's total hours worked in the full
pay periods of the prior 90 days of employment.
Section 6. Payment of sick leave.
(a) Time.--An employer must provide payment for sick leave
used by an employee no later than the payday for the next
regular payroll period after the sick leave was used.
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(b) Compensation.--An employer is not required to provide
compensation to an employee for accrued, unused paid sick leave
upon termination, resignation, retirement or other separation
from employment, except that, if an employee separates from an
employer and is rehired by the employer within one year from the
date of separation, previously accrued and unused paid sick
leave must be reinstated. The employee may use previously
accrued and unused paid sick leave and shall accrue additional
paid sick leave upon being rehired.
Section 7. Prohibitions.
An employer may not:
(1) Deny an employee the right to use accrued sick
leave.
(2) Discharge, threaten to discharge, demote, suspend,
reduce the wages of or in any manner discriminate against an
employee for doing any of the following:
(i) Using accrued sick leave or attempting to
exercise the right to use accrued sick leave.
(ii) Filing a complaint or alleging a violation of
this act.
(iii) Cooperating in an investigation or prosecution
of an alleged violation of this act.
(iv) Opposing a policy or practice that is
prohibited under this act.
Section 8. Complaint procedure.
An employee may file with the department a complaint against
an employer for an alleged violation of this act. The department
shall establish a process for investigating and resolving a
complaint.
Section 9. Employer penalties.
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An employer who willfully violates the posting provisions of
section 4(e)(2) shall be subject to a penalty, not to exceed
$250 for each offense, to be imposed by the department.
Section 10. Remedies.
(a) Department.--The department may order an employer who is
found to be in violation of this act to do all of the following:
(1) Reinstate the employee with or without back pay.
(2) Pay the employee the amount of sick leave unlawfully
withheld.
(3) Pay the employee an additional sum in the form of an
administrative penalty. If paid sick leave was unlawfully
withheld, the administrative penalty shall be an amount equal
to the dollar amount of paid sick leave unlawfully withheld
multiplied by three, or $250, whichever is greater, not to
exceed $5,000. If the violation of this act resulted in
additional harm to an employee, such as discharge from
employment, or otherwise results in a violation of the rights
of the employee, the administrative penalty shall include an
additional sum of $500 for each day or portion of a day that
the violation occurred or continued, not to exceed $10,000.
(4) Comply with any other additional relief the
department deems appropriate.
(b) Civil action.--The secretary, the Attorney General or
the employee may bring a civil action in a court of competent
jurisdiction against the employer or other person violating this
act and, upon prevailing and except as provided under subsection
(c) or (d), shall be entitled to collect legal or equitable
relief on behalf of the aggrieved as may be appropriate to
remedy the violation, including:
(1) Reinstatement of the employee, with or without back
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pay.
(2) Payment of sick leave unlawfully withheld.
(3) The payment of an additional sum, not to exceed an
aggregate penalty of $5,000, as liquidated damages in the
amount of $50 to each employee or person whose rights under
this act were violated for each day or portion of a day that
the violation occurred or continued. In addition, if the
employer has unlawfully withheld paid sick days to an
employee, the employer must pay the dollar amount of paid
sick days withheld from the employee multiplied by three or
$250, whichever amount is greater.
(4) Injunctive relief.
(5) Reasonable attorney fees and costs.
(c) Limitation on damages.--The secretary, the Attorney
General or an employee enforcing this act on behalf of the
public as provided for under law shall, upon prevailing, be
entitled only to equitable, injunctive or restitutionary relief
and reasonable attorney fees and costs.
(d) Error.--An employer may not be assessed a penalty or
liquidated damages under this section due to an isolated and
unintentional payroll error or written notice error that is a
clerical or an inadvertent mistake regarding the accrual or
available use of paid sick leave. In a review under this
subsection consideration may be given to whether the employer,
prior to an alleged violation, has adopted and is in compliance
with a set of policies, procedures and practices that fully
comply with this act.
(e) Interest.--In an administrative or civil action brought
under this section, the secretary or a court shall award
interest on each amount due and unpaid calculated in accordance
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with law.
(f) Penalties cumulative.--The remedies, penalties and
procedures provided under this section shall be cumulative.
Section 11. Construction.
This act:
(1) May not be construed to invalidate an ordinance or
other mandate enacted by a municipality prior to the
effective date of this section that requires employers within
the municipality to provide paid sick leave benefits more
generous than that contained under this act.
(2) May not be construed to prohibit a municipality from
enacting an ordinance or mandate that requires employers
within the municipality to provide paid sick leave benefits
more generous than that contained under this act.
(3) May not be construed to discourage or prohibit an
employer from the adoption or retention of a paid sick leave
policy more generous than that contained in this act or any
ordinance adopted by a municipality under paragraph (1) or
(2).
(4) Shall not preempt or otherwise apply to an ordinance
or mandate enacted by a municipality affecting vacation or
other forms of leave offered by employers within the
municipality.
(5) Shall not be construed to mandate a municipality to
adopt an ordinance applicable to employers within the
municipality relating to compensation, vacation or other
forms of leave from employment.
(6) Shall not limit or affect any Federal, State or
local law guaranteeing privacy of health information or
information related to domestic violence or sexual assault,
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regarding an employee or employee's family member. The
information must be treated as confidential and may not be
disclosed to a person except the affected employee or as
required by law.
(7) Shall not relieve or lessen the obligation of an
employer to comply with an existing contract, collective
bargaining agreement, employment benefit plan or other
agreement providing more generous paid sick leave to an
employee than that required by this act or an ordinance
adopted by a municipality under paragraph (1) or (2).
(8) Shall not be construed to remove the contents of
this act from the scope of collective bargaining under the
act of June 1, 1937 (P.L.1168, No.294), known as the
Pennsylvania Labor Relations Act, the act of March 10, 1949
(P.L.30, No.14), known as the Public School Code of 1949, or
the act of July 23, 1970 (P.L.563, No.195), known as the
Public Employe Relations Act.
(9) Shall not preempt, limit or affect the applicability
of any other law, regulation, requirement, policy or standard
that provides for greater accrual or use of paid or unpaid
sick leave or that extends other protections to an employee.
(10) Shall be in addition to and independent of any
other right, remedy or procedure available under any other
law and shall not diminish, alter or negate any other legal
right, remedy or procedure available to an aggrieved person.
Section 12. Effective date.
This act shall take effect January 1, 2021, or immediately,
whichever is later.
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