Nearly two-and-a-half years after it was originally proposed, the Allegheny County Council passed a Paid Sick Leave law (the “Act”) in September 2021 to require employers to provide certain employees in Allegheny County with up to 40 hours of paid sick time per year.  With the adoption of this law, Allegheny County joins over 25 other states and localities—including Pittsburgh and Philadelphia—that have enacted generally applicable paid sick and safe time laws.  In most respects, the Act tracks the Pittsburgh Paid Sick Days Act, which will make compliance easier since Pittsburgh sits within Allegheny County.

The Act states that its notice provisions became effective upon final approval, but all provisions were to take effect 90 days after designation of an enforcement agency and that agency’s posting of notice information for employers online.  The county designated the Allegheny County Department of Administrative Services (Department) as the agency responsible for enforcing the Act. On December 10, 2021, the Department posted a sample Notice for employers on the county’s website, making the effective date for compliance March 10, 2022, per the Act’s text.¹ 

Nonetheless, the Department also posted Guidance and FAQs on December 10, 2021, stating that the Act took effect on December 15, 2021, just five days after the Department posted the sample notice for employers.  Despite the tension between the Department’s actions and the express language of the Act, covered employers should take steps necessary to ensure they comply with the ordinance.² Consistent with the terms of the Act, the Department has emphasized it will not impose fines or penalties under the Act for one year following the effective date of the Act (i.e., until December 15, 2022 per its interpretation of the effective date).

We discuss the key provisions of the Act, the interpretive Guidance, and the FAQs issued by the Department to assist employers in their compliance efforts.

Covered Employees and Employers

The Act applies to all part-time and full-time employees of a private employer situated or doing business in Allegheny County, including unionized employees of a private employer.  Independent contractors and seasonal employees (defined as employees who are hired for no more than 16 weeks during a calendar year and who are notified in writing when they are hired that their employment is limited to the beginning and ending dates of the employer’s seasonal period) are excluded from the Act’s coverage.  

Although the Act defines “employer” broadly to cover virtually all private employers that are situated in or conduct business in Allegheny County, it requires only employers with 26 or more employees (working anywhere) to provide paid sick leave.

Accrual, Carryover and Frontloading

Covered employees began accruing paid sick time on the later of December 15, 2021 or their date of hire.  Generally, all accrued, unused paid sick time must be carried over to the following calendar year.  Employers may designate a different 12-month period of their choice as the calendar year as long as they inform employees which 12-month period they are using.

The Act includes specific requirements for the accrual, carryover, and frontloading of paid sick time.  Covered employers must permit employees to accrue at least one hour of sick time for every 35 hours they work in Allegheny County, with a 40-hour cap on the amount of sick time that may be accrued per year unless the employer elects to provide a higher amount.  While accrued but unused sick time must be carried over to the following calendar year, employees are not entitled to have access to more than 40 hours of time in any calendar year.  In this way, the overall accrual cap under the Act works differently than accrual caps under other paid sick time laws except for the Pittsburgh Paid Sick Days Act.

Employers can avoid the carryover requirements if they “frontload” 40 hours of paid sick time at the beginning of each calendar year.  If employers “frontload” fewer than 40 hours of paid sick time at the beginning of a calendar year (which some employers may choose to do for part-time employees), employers must continue to track employees’ accrual and permit employees to carry over the difference between 40 and the amount of paid sick time they actually accrued in the preceding year.  

The Use of Existing Policies to Comply

While employers should not assume that simply having a sick leave or paid time off (PTO) policy will be sufficient to comply with the Act, the Act does not require employers that already have a paid leave policy (such as a PTO policy) or provide paid sick leave in a collective bargaining agreement (CBA) to provide additional paid sick time as long as the policy or the provision in the CBA meets the Act’s accrual requirements and the paid leave may be used for the same purposes and under the same conditions as paid sick time under the Act.

Permitted Uses

Employees may begin to use any accrued paid sick time on the 90^th calendar day after the start of their employment. Employers must allow employees to use accrued paid sick time for any of the following reasons:

1. The employee’s own mental or physical illness, injury, or health condition, including diagnostic, treatment, and preventive medical care;
2. Care of a family member with a mental or physical illness, injury, or health condition, including diagnostic, treatment, and preventive medical care;
3. Closure of the employee’s place of business by order of a public official due to a public health emergency;
4. Care for a child whose school or place of care has been closed by order of a public official due to a public health emergency; and
5. Care for a family member when health authorities or a health care provider have determined that the family member’s presence in the community would jeopardize the health of others because of the family member’s exposure to a communicable disease, whether or not the family member has actually contracted the communicable disease.

The Act defines “family member” very broadly.  It includes:

• A biological, adopted, foster, or stepchild; legal ward; child of a domestic partner; or child to whom the employee stands in loco parentis;
• A biological, foster, adoptive, or stepparent or legal guardian of an employee or of an employee’s spouse or domestic partner, or person who stood in loco parentis to an employee when they were a minor;
• A spouse or domestic partner;
• A grandparent or spouse or domestic partner of a grandparent;
• A grandchild;
• A biological, adopted, or foster sibling; and
• Any person for whom the employee has received permission from the employer to care for at the time the employee requests to use paid sick time.

The Act limits the permitted uses of paid sick time to those listed above and, unlike many other paid sick time laws, does not contain any “safe time” component. 

Employers are required to allow employees to use their paid sick time in hourly increments or the smallest increment that the employer’s payroll system uses to account for absences or use other time, whichever is smaller.    

Requests for Sick Time Use

Employees must request to use paid sick time, and when possible, must state the anticipated amount of time off needed.  When the need for paid sick time is foreseeable, employees must make reasonable efforts to schedule the time in a manner that does not unduly disrupt business operations. 

The Act permits employers to maintain a reasonable policy that dictates how far in advance employees must give notice of the need to use paid sick time.  If an employer maintains such a policy and the need for leave is foreseeable, employers may require employees to provide up to seven days’ advance notice; if seven days’ notice is not possible or the need for time off is unforeseeable, employees must give notice as soon as possible.  If employers do not have a policy requiring employees to provide advance notice of their need for leave, employees need only request paid sick time one hour before their shift starts.

Documenting Absences

The Act allows employers to request proof that an employee’s time off was for a covered purpose under the Act only if an employee uses paid sick time for three or more consecutive days.  Employers may require “reasonable documentation,” which includes documentation signed by a health care professional indicating that paid sick time is necessary, but does not include documentation that explains the precise nature of an employee’s (or family member’s) illness.

Payment for Sick Time Use

The Act requires employers to pay for sick time at an employee’s base rate of pay with the same benefits, including health care benefits, an employee receives when working.  Employees who receive commissions are not entitled to compensation for lost commissions, and tipped employees are not entitled to compensation for lost tips under the law, but they must receive at least the minimum wage.  Paid sick time is available only for the hours an employee was scheduled to work.  The Guidance also explains how the base rate of pay should be calculated for employees who are paid based on piece rates, whose pay rate fluctuates, or who work shifts of indeterminate length.

End-of-Employment Issues

Employers are not required to cash out employees’ accrued, unused, paid sick time at the end of their employment, but any unused time must be restored and made available for immediate use if the employee is rehired within six months.

Notice and Recordkeeping Requirements

The Act requires employers to give written notice to their employees informing them of:

• Their entitlement to paid sick time (including the amount and the terms of its use under the law);
• The prohibition on retaliation against employees who request or use paid sick time; and
• The right of employees to file a complaint with the enforcement agency if the employee is denied paid sick time or retaliated against for requesting or taking paid sick time.

The Department has posted a sample paid sick leave Notice on the county’s website that can be used in its original or a modified form (to align with the employer’s existing policies).  Employers must post the Notice (or their version of it) in a conspicuous and accessible location where any of their employees work, in English, Spanish, and any other primary languages of the employees at a particular workplace.  If posting of the Notice is not feasible—for example, where the employees work remotely or do not have a regular workplace—employers may provide the Notice, either physically or electronically, to employees individually in their primary language.

Employers are required to keep records that document the hours worked and paid sick time taken by their employees for two years.  Importantly, if an employer fails to maintain adequate records (or does not allow the enforcement agency access to them), it will be presumed that the employer violated the law, absent clear and convincing evidence otherwise.

While there are no paystub reporting requirements in the Act, the Guidance recommends that employers choose a reasonable system for providing notification of available paid sick time, including providing updated amounts of paid sick time available on pay stubs or in an online system where employees can access the information.   

Prohibition on Interference with Rights and Anti-Retaliation Protections

Under the Act, an employer cannot require that an employee search for or find a replacement worker to cover the hours during which the employee is using paid sick time; cannot count paid sick time as an absence that may result in or lead to discipline, discharge, demotion, suspension, or any other adverse action; and cannot otherwise interfere with, restrain, or deny the exercise or attempted exercise of any right protected under the Act.

An employer also cannot discriminate or retaliate against employees for using paid sick time, filing a complaint related to paid sick time with an agency or a court, informing any person about any employer’s alleged violations of the Act, or informing any person about their potential rights under the Act.

The Act includes a rebuttable presumption that an employer has retaliated whenever an employer takes an adverse action against a person within 90 days of when that person:

• Files a complaint with an agency or court alleging a violation of any provision of the law;
• Informs any person about an employer’s alleged violation of the law;
• Cooperates with the enforcement agency or other persons in the investigation or prosecution of any alleged violation of the law;
• Opposes any unlawful policy, practice, or act under the law; or
• Informs any person of their rights under the law.

Penalties and Available Remedies

Under the Act, the Department may impose a fine or penalty of up to $100 per willful violation.  However, as noted above, the Department will not impose any fines or penalties under the Act until one year after its effective date (i.e., on December 15, 2022 per its interpretation of the effective date).  Complaints must be filed with the Department within six months of the date the person filing the complaint knew or should have known of a violation.  Despite the reference to complaints filed in court in the anti-retaliation provisions of the Act, there is no private right of action available to employees under the Act.

Similarities to City of Pittsburgh’s Paid Sick Days Act

Allegheny County’s new paid sick leave law in most respects tracks the City of Pittsburgh’s Paid Sick Days Act (PSDA) that went into effect March 15, 2020.³  However, the county’s new law does differ from the PSDA in the following respects:

• The Act does not impose any obligations on employers with fewer than 26 employees (whereas the PSDA requires employers with fewer than 15 employees to allow their employees to accrue up to 24 hours of paid sick time in a calendar year);
• It does not exclude members of a construction union covered by a CBA from the definition of “employee”; and
• It provides for a $100 penalty or fine only, while the PSDA also permits employees to recover back pay and be reinstated.

The Act does not apply when a municipality in the county has enacted its own, no less-stringent paid sick leave ordinance, so long as the municipality is effectively enforcing the law.  While neither the Department nor the City of Pittsburgh has explicitly affirmed this to be true, it appears that the intent is that the Act will not apply to employees of private employers that are covered by the PSDA, but it will apply to employees of private employers who are members of a construction union covered by a CBA who are excluded from coverage under the PSDA.  At this time, other than the City of Pittsburgh, no other municipalities in Allegheny County have paid sick time laws.

What Can Employers Do to Prepare?

Employers can prepare by considering taking one or more of these actions:

• Review the Act, Guidance, and FAQs to determine if they are covered and understand their obligations.
• Post the required Notice (i.e., the sample Notice or a modified version that reflects company policies) in English, Spanish, and other primary languages used by employees at all worksites and/or online.
• Evaluate their existing paid sick time, vacation, and/or PTO policies and procedures to see if they meet the Act’s accrual requirements and allow for use of such time for the same purposes and under the same conditions as paid sick time under the Act.  With that information, employers can assess whether to amend any existing policy or to adopt a separate or supplemental paid sick leave bank to ensure compliance.
• Ensure timekeeping, payroll, and benefits systems will enable them to comply with the law’s recordkeeping requirements.
• Provide the paid sick time required by the Act and otherwise abide by the Act in accordance with the Department’s Guidance.