Practice Area: Employment Law

As PA counties move into the green phase of reopening and non-essential business commences, employers and business owners in PA have many questions. We have compiled and answered some the most important questions below.

by Employment Attorneys James B. Shrimp and Thomas D. Rees

1. My business has reopened and I have an employee that HAS tested positive for COVID-19. What are my options?

The legal answer to this question depends upon the size of your business. You should also look to CDC guidelines regarding additional cleaning of the workplace and any contact tracing and additional quarantine of employees that is recommended. The answers below can also apply to employees that have recently been exposed to another person who has the coronavirus.

A. Businesses with 500 or more employees

There are no enhanced paid leave benefits. Your HR department should apply its PTO and unpaid time off policies, with the understanding that CDC guidelines likely require a period of quarantine for the employee. It would not be advisable to terminate the employee during this period of quarantine.

B. Businesses with Under 500 employees

The employee may be entitled to two (2) weeks of paid sick leave.

The Families First Coronavirus Response Act (“Act”) was the first coronavirus related legislation passed by Congress. The Act seeks to address the impact of coronavirus in a number of areas – including certain employee benefits.

The Act applies to employers with under 500 employees. Employers with under 50 employees are entitled to seek an exemption from the Department of Labor, if providing the benefits provided by the Act would put the employer out of business.

The Act provides two new paid benefits which expire on December 31, 2020:

• A two-week paid sick leave for coronavirus related illness; and
• Up to 12 weeks of paid Family and Medical Leave for caring for a child whose school or child care provider has closed.

Who Can Take advantage of the two-week paid sick leave?

1. This benefit is for employees who are unable to work (or telework) because the employee is subject to a governmentally mandated quarantine or isolation order;
2. has been advised by a health care provider to self-quarantine;
3. has symptoms of being infected with coronavirus and is seeking a medical diagnosis;
4. is caring for an individual who is quarantined or self-quarantining;
5. is caring for a son or daughter if the school or place of care has been closed.

If any of the circumstances above apply, the employee is eligible for two (2) weeks of full pay, based on his/her typically schedule. There is a maximum benefit of $511 per day.

If the employee has employer based sick time/PTO, the employer is required to apply the government emergency leave, before applying the employer based benefit.

The employer is reimbursed via a payroll tax credit, which will be provided by the Federal government within 3 months. If the employer pays more in paid benefits and health insurance premiums than the payroll tax, the government will send the employer an “overpayment” check for the difference.

C. Other Employees

The employer is entitled to screen employees for Covid related symptoms. See EEOC Guidance - “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws,” (April 23, 2020).

2. My business has re-opened and I have an employee that HAD COVID-19. What steps should I take?

You are entitled to require a return to work note from the employee’s physician. Once you receive the return to work note, that employee is permitted to return to work and should be treated like all other employees.

3. Due to Schools and Childcare Centers being closed, my employees cannot get into work. What are my options?

The answer to this question depends upon the size of your business.

A. 500 or more employees

There are no enhanced paid leave benefits. Your HR department should apply its PTO and unpaid time off policies. If the employee’s PTO has exhausted and there is no unpaid time off policy that would apply, the employee has no right to continued employment. Ensure that terminations made under these circumstances are done in a non-discriminatory fashion.

B. Under 500 employees

The employee may be entitled to twelve (12) weeks of Family and Medical Leave.

The Families First Coronavirus Response Act (“Act”) was the first coronavirus related legislation passed by Congress. The Act seeks to address the impact of coronavirus in a number of areas – including certain employee benefits.

The Act applies to employers with under 500 employees. Employers with under 50 employees are entitled to seek an exemption from the Department of Labor, if providing the benefits provided by the Act would put the employer out of business.

The Act provides two new paid benefits which expire on December 31, 2020:

• A two-week paid sick leave for coronavirus related illness; and
• Up to 12 weeks of paid Family and Medical Leave for caring for a child whose school or child care provider has closed.

Pertinent to the question posed is the twelve weeks of paid Family and Medical Leave.

This benefit is available for employees who are unable to work (or telework) because the employee must care for children (up to 18 years old) whose schools or child care facilities have closed because of the coronavirus.

The employee is eligible for up to 12 weeks of two-thirds pay, with health insurance. The maximum benefit is $200 per day and $10,000 total. The first two weeks of this leave may be unpaid (that gap is filled by the Paid Sick Leave benefit).

The employer is reimbursed via a payroll tax credit, which will be provided by the Federal government within 3 months. If the employer pays more in paid benefits and health insurance premiums than the payroll tax, the government will send the employer an “overpayment” check for the difference.

4. My business is ready to reopen but I several employees tell me that they have underlying health conditions; what are my options?

If the health condition qualifies as a disability under the Americans with Disabilities Act, you need to provide the employee with a reasonable accommodation to returning to work, so long as the accommodation does not create undue difficulty or cost for you.

The first step is to find out whether the employee’s condition interferes with the employee’s ability to perform major life activities (e.g., asthma impairs breathing). The next step is to discuss various accommodations, since the ADA requires employer and employee to engage in an interactive process. The type of accommodation depends on the nature of the employee’s job. Possible accommodations include continued work from home; work in a protected area (either a separate part of the office or work behind shielding); work when others are not present (staggered hours); or a reasonable modification of duties, including a possible exchange of duties with other employees.

Reasonable accommodation does not require an employer to fundamentally alter the basic qualifications for a job (minimum skills, licensure). Be sure to document all discussions with the employee and all steps taken to accommodate the employee.

5. My business is ready to reopen but have an employee who feels uncomfortable returning to the workplace because of COVID-19; what are my options?

It is wise to ask the employee the reasons for discomfort. A refusal to come to work just because someone feels uncomfortable is not a legitimate excuse. But the discomfort may have underlying causes that may constitute a disability under the Americans with Disabilities Act. You may ask the employee for medical reasons for the discomfort; this inquiry is job related and consistent with business necessity under the ADA. The inquiry may uncover a psychological reason for the employee’s concerns, such as generalized anxiety disorder or post traumatic stress syndrome. Or there may be a medical reason for the concern, such as an underlying condition that makes the employee susceptible to COVID-19. If the employee can document a condition that constitutes a disability, then you should try to work out a reasonable accommodation that allows the person to work with some degree of separation from the office. However, if the employee cannot document the condition, you may require the employee to come into work, and you may treat the refusal to come to work as a voluntary quit that precludes the employee’s receipt of unemployment compensation

6. We are ready to reopen but the nature of my business makes social distancing very difficult; what can I do?

Many businesses face this issue, particularly stores that have inventory in small spaces (drugstores, coffee shops, bookstores). The first step is of course to require the wearing of masks at all times. State governments have already imposed this requirement. The second step would be to take whatever steps can reasonably be taken to increase social distancing. These could include such steps as staggered hours; staggered breaks; setting up one-way corridors or spaces in the office; setting up zones in the office that specific individuals would cover; and having plenty of disinfecting wipes and hand sanitizers around. Some businesses may be able to transact customer business through a window opening onto the street or to use curbside delivery. You may need to be extra careful to require any employee with any illness to stay away from work. Each business has its own different needs. It will be wise to establish written guidelines to minimize close social contact and to post those guidelines for both employers and employees. Remember that you have the duty to have a safe workplace and written guidelines will help you show that you have fulfilled this duty.

7. I am re-opening my business - do I need to offer masks to my employees?

In Pennsylvania, employers are required to provide non-medical masks to employees and are required to ensure that customers wear masks as well.

8. Do I need to update my employee manuals with Covid (general pandemic) information before hiring new employees?

No. As an employer, you can update your employee manuals/policies at any time. Therefore, if you are re-opening and you need additional staff, do not slow hiring to get additional policies in place.

With that said, once your business is up and running at all cylinders, it is worth sitting down with your business lawyer to discuss what revisions and additions you might want to make to your employee manual.

9. My employee refuses to come back to work because they are receiving more money on unemployment compensation as a result of the $600 per week federal supplement. Can employees do this?

An employee “can” do this, but he/she will lose the entitlement to future unemployment benefits. The employee should know that the $600 per week federal supplement expires at the end of July and currently there is no appetite in the United States Senate to extend this supplement, for the very reasons stated in the question.

If an employee refuses to come back to work, you should advise the employee in writing that since he/she has refused to return to work, that he/she is being terminated for job abandonment. You should then notify the bureau of unemployment compensation that the employee refused to return to work and was terminated for job abandonment.

10. Employees have asked me whether the shelter in place order counts against my sick or vacation time; what should my response be?

A shelter in place order will almost never count against preexisting leave entitlements offered by an employer. A shelter in place order will qualify an employee for paid sick leave if the order prevents the employee from doing work that the employer has for the employee. This means that if the shelter in place order keeps an employee from being able to work or telework, and the you have work for the employee, the employee may get paid sick leave. If either of these requirements are not met, either because the employee can telework or you have no work for the employee, then the shutdown will not enable the employee to receive paid sick leave.

Paid sick leave is additional to whatever leave your employee has under your business’ leave policies. In rare situations, an employer and employee may agree to combine paid sick leave under the Emergency Paid Sick Leave Act and paid leave under the employer’s policies, where the addition will increase the employee’s compensation. The rules for family leave under the Emergency Family and Medical Leave Expansion Act give employers a little more flexibility. Employers may require employees to use up paid regular paid vacation and personal leave (but not sick or medical leave) concurrently with family leave; again, this helps to close the compensation gap between paid family leave (maxing out at $200 per day and $10,000 aggregate) and full paid leave under the employer’s plans.

If you are are a business owner and have more questions during the Pandemic, please reach out to the employment attorneys at High Swartz and call 610-275-0700 or fill out our contact form.

If you meet one of the following employment statuses, you may be eligible for unemployment compensation in Pennsylvania.

Both employees and employers are trying to navigate the unprecedented measures being implemented by the government to attempt to slow the spread of the COVID-19 virus (Coronavirus). With many businesses being forced to close or alter operations, employers are struggling with deciding how to adjust operations and whether to furlough or even lay off employees. At the same time, employees need to be proactive and look ahead to their options. Below are unemployment compensation eligibility statuses that may effect many employees in Pennsylvania.

Unemployment compensation eligibility statuses for employees

Employees in Pennsylvania are likely eligible for unemployment compensation if:

• their employer has closed
• the employee is furloughed (a temporary leave of employees due to the outstanding needs of the employer)
• laid off
• forced to work at home (if it results in a reduction of hours)

What if and employee is under quarantine for coronavirus?

If the employee is quarantined, they may also be eligible for unemployment compensation benefits, but the employee must first exhaust all sick leave/paid time off benefits.

The Pennsylvania Unemployment Compensation Bureau (“UCB”) has made some important changes to its typical operations/requirements in this unprecedented COVID-19 and coronavirus outbreak in 2020. Most importantly, UCB has temporarily:

• eliminated the one week waiting period for receipt of unemployment benefits
• eliminated the requirement to search for work while receiving unemployment benefits

This is in light of the fact that, at least for now, many of the requests for benefits will be for furloughed workers. Employers that close as a result of COVID-19 impacts will be granted relief from charges and the employers’ unemployment tax rate will not increase.

On March 18, 2020, the president signed the Families First Coronavirus Response Act. Click here to see if you as an employee or employer is affected. (Link to JBS Blog on FFCRA)

Our advice here at High Swartz is that if you meet any of the above criteria, consider filing a unemployment compensation claim as soon as possible. If you have filed for UC before, you may enter your PIN (Personal Identification Number) that will pull up your past information. If you are new to the process, there are a few things that are necessary for you to have before you get started.

• Your Social Security Number
• Your Home address or mailing address
• The best phone number to reach you
• The best email address to reach you. This must be a valid address
• Direct Deposit information (optional) – bank name, address and routing number

If you need help or advice during these trying times, High Swartz’s attorneys are here to help. Please contact Employment Attorney, Jim Shrimp at jshrimp@highswartz.com or call 610.275.0700.

In late 2018, the Pennsylvania Supreme Court decided that employees may sue employers for the release of stolen confidential employee data. The Court’s decision in the Dittman vs. University of Pittsburgh Medical Center, allowed University of Pittsburgh Medical Center (“UPMC”) employees to bring a class action for negligence after a data breach from UPMC’s computer systems.

The Decision’s Impact

The Court’s decision will have a far-reaching impact. First, the decision will require employers to use reasonable care to protect employees’ personal and financial information. Second, the decision allows negligence lawsuits even where the plaintiffs’ losses were purely economic and no physical injury or tangible property damage occurred. As such, the decision limits the “economic loss doctrine” that courts had used to dismiss such lawsuits.

The Back Story

The cyber attack took place in 2014. The data breach led to the theft of 62,000 employees’ names, addresses, birth dates, social security numbers, salaries, or tax and bank information. The hackers taking the information then used the stolen data to file fraudulent tax returns and steal employees’ tax refunds.

The Lawsuit

Right after the breach, a group of employees sued UPMC for negligence and breach of implied contract. The employees contended that UPMC had a duty to use reasonable care to protect employees’ personal and financial information from being compromised, lost, stolen, misused, and /or disclosed to unauthorized parties. The employees claimed that UPMC had breached this duty. Specifically, UPMC had (1) failed to undertake adequate security measures, (2) failed to monitor network security, (3) allowed unauthorized access to information, and (4) failed to recognize that information had been compromised. The employees alleged that UPMC failed to meet current standards for encryption, firewalls, and authentication.

UPMC filed preliminary objections seeking immediate dismissal of the complaint. UPMC argued that no duty of care existed to protect against data breaches, and that the economic loss doctrine barred negligence claims.

The Lower Courts Dismiss the Case

The Allegheny County Court of Common Pleas agreed with UPMC and dismissed the employees’ suit. The Court both relied on the economic loss doctrine and held that courts should not create a new affirmative duty of care to protect against data breaches. The Court had concerns that this new duty of care would flood the court system with lawsuits. The Court also said that data breach liability was a policy issue to be addressed by the legislative branch.

The employees appealed to the Superior Court, where a three judge panel upheld the lower court in a 2-1 decision. One dissenting judge stated that employers have a duty of care to protect against data breaches.

The PA Supreme Court Allows Employees to Sue for Data Breach

After accepting the case for appeal, the Pennsylvania Supreme Court overturned the two lower court decisions on both the duty of care and the economic loss issues. The Supreme Court held that UPMC had the duty to protect employee information since UPMC had taken the affirmative step to require employees to provide certain information. The Court said that this duty existed despite the intervening third party theft, because theft was foreseeable without proper data protection.

On the economic loss issue, the Court allowed a negligence claim for economic loss where a duty existed outside the parties’ contractual relationship. The Court found that the employees alleged that UPMC had a duty, outside any contract, to act with reasonable care in collecting and storing personal and financial information on computer systems. The Court’s decision is a setback for efforts to invoke the economic loss doctrine in defending against business-related tort claims.

Practical Implications: Employers Need to Use Reasonable Care to Protect Employee Data

What are the practical implications of the UPMC ruling? Employers will have to take additional steps to lock down confidential employee information. The decision will affect every employer, since all employers collect confidential data in the course of setting up basic transactions like direct deposit and tax and social security withholding. Legislative action may also provide more specific guidance on data protection. The decision will have a continuing effect in the workplace and in development of new data protection policies.

The Ordinance

On January 23, 2017, the Philadelphia Wage Equity Ordinance (“Ordinance”) was signed by the Mayor.  The Ordinance made it unlawful for any business that employs individuals in the City of Philadelphia to (1) inquire about a job applicant’s wage history (“Inquiry Provision”); or (2) to rely upon wage history information in determining a salary for an employee at any stage in the employment process (“Reliance Provision”).

The Ordinance was set to take effect on May 23, 2017, but the City agreed not to enforce the Ordinance until a lawsuit challenging the constitutionality of the Ordinance was decided.

The Lawsuit/Decision

On April 30, 2018, Judge Goldberg of the United States District Court for the Eastern District of Pennsylvania issued a split decision on the constitutionality of the Ordinance.  The Court enjoined (prevented) the enforcement of the Inquiry Provision on First Amendment grounds, but did not enjoin (allowed) the enforcement of the Reliance Provision.  Because of the constitutional issues that had to be decided, the decision is long and contains a significant amount of legal language.

What Does the Decision Mean

In the short-term, the decision may not have much effect.  Both the City and the Chamber of Commerce will likely appeal Judge Goldberg’s decision to the Third Circuit Court of Appeals. The appeals will take at least another nine months to decide.  In the meantime, the City will probably agree not to enforce the entire Ordinance.

In the long-term, Judge Goldberg’s decision may very well indicate what an employer’s responsibilities will be when interviewing candidates and making job offers in the City of Philadelphia.

Initially, it is important to note that in the decision, Judge Goldberg highlighted that the City defined “employer” via regulation as “any person who does business in the City of Philadelphia through employees” and “who engages in the process of interviewing a Prospective Employee with the intention of considering such Prospective Employee for a position located within the City.” Thus, the Ordinance will only impact businesses that are searching for job candidates that will work within the City of Philadelphia.

Should Judge Goldberg’s decision be upheld, an employer will be permitted to ask about a job applicant’s wage history, because the Inquiry Provision will be invalidated.  Practically speaking, however, the employer will not want to ask a job applicant about salary history, because the Reliance Provision will still be in effect.  Employers will take the view that it makes no sense to ask about information that the employers cannot use.  Practically speaking, an inquiry about wage history will end up in the ash heap of unaskable questions at job interviews.

With that said, if a job applicant “knowingly and willfully” discloses his/her wage history, the employer is permitted to use that information, but only if the disclosure was not prompted by the employer’s questioning.

Businesses that employ individuals in the City need to keep a close eye on this litigation.  In the meantime, no action is necessary, although it would be prudent to begin auditing certain aspects of the hiring process, including review job application formats and interview outlines, to perhaps eliminate any questions regarding wage history.

If you have any questions about the Philadelphia Wage Equity Ordinance, please contact James B. Shrimp at 610-275-0700 or jshrimp@highswartz.com. Our employment law attorneys provide businesses and nonprofit organizations throughout the Pennsylvania region, including Bucks County, Montgomery County, Delaware County, Philadelphia and Chester County with sound advice and excellent representation.

The information above is general: we recommend that you consult an attorney regarding your specific circumstances.  The content of this information is not meant to be considered as legal advice or a substitute for legal representation.

When an employment relationship ends – whether by termination or resignation – employers must be aware of their obligation to pay any wages then due and owing, or be prepared to suffer the substantial consequences.  Under Pennsylvania’s Wage Payment and Collection Law (“WPCL”) 43 P.S. §260.1 et seq., an employer who wrongfully withholds wages from an employee is subject to civil -- and possibly even criminal -- penalties.  The protections afforded by the WPCL apply to all employees based in Pennsylvania.

As a threshold matter, under the WPCL, the employer must notify its employees at the time of hiring not only of the rate of pay, but also of the time and place of payment.

It shall be the duty of every employer to notify his employes at the time of hiring of the time and place of payment and the rate of pay and the amount of any fringe benefits or wage supplements to be paid to the employe...

43 P.S. § 260.4.  Thereafter, employers must timely make such payments as scheduled and agreed upon.

Every employer shall pay all wages, other than fringe benefits and wage supplements, due to his employes on regular paydays designated in advance by the employer.

43 P.S. § 260.3.  Accordingly, every employer is required to pay all wages due to an employee on regularly scheduled paydays which cannot be altered without adequate notice.

Of significant note, the WPCL has a rather expansive definition of “wages:”

"WAGES." Includes all earnings of an employe, regardless of whether determined on time, task, piece, commission or other method of calculation. The term "wages" also includes fringe benefits or wage supplements . . .

43 P.S. § 260.2a.  Therefore, for purposes of the WPCL, wages include not only salary payments, but also other earnings of an employee such as earned commissions, earned bonus payments, unpaid vacation, holiday, or other guaranteed pay.

Of course, the WPCL does not create any substantive right to compensation on the part of the employee; rather, it only establishes an employee's right to enforce – ultimately at the employer’s additional cost and expense -- payment of wages and compensation to which an employee is otherwise entitled under the terms of an existing agreement, whether oral or written.

The WPCL has been described as a state law that provides a vehicle to recover unpaid wages -- and also damages -- in the event an employer improperly withholds compensation from an employee.  The courts have noted that the fundamental purpose of the WPCL is to remove some of the obstacles employees may otherwise face in litigation by providing them with a legal remedy when an employer breaches its underlying obligation to pay wages.

Because the primary goal of the WPCL is to make employees whole again where wages have been wrongfully withheld by their employers, the legislature included the following provision:

The court in any action brought under this section shall, in addition to any judgment awarded to the plaintiff or plaintiffs, allow costs for reasonable attorneys' fees of any nature to be paid by the defendant.

43 P.S. § 260.9a(f).  The Pennsylvania Superior Court has held that:

...the legislature intended a mandatory award of attorneys' fees for a plaintiff who prevails on a claim pursued under the Act. This interpretation is consistent with the general import of the statute, and goes to the very "essence" of its goal of making an employee whole again . . . Otherwise, employees who are unjustly deprived of their wages by their employers, may be deterred from filing suit because of burdensome legal costs . . . Similarly, employees who do file suit and are successful, would be subjected to payment of a substantial part of their award (which represents earned compensation) as attorneys' fees. This would clearly undermine the intent of the statute because employees who are unable to retain their wages will not be made whole. Without an award of attorneys' fees the end result would be only a partial recovery under the statute. Therefore, under the WPCL, an employee who has prevailed on a claim for past wages due, is entitled to attorneys' fees as a matter of entitlement.

Oberneder v. Link Computer Corp., 674 A.2d 720, 723 (Pa.Super.1995).  Of course, the award of attorneys’ fees after a lengthy battle under the WPCL could dwarf the amount of “wages” which had been withheld.

Moreover, the WPCL allows an employee to claim penalties in the form of liquidated damages in an amount equal to twenty-five percent (25%) of the total amount of wages due -- if there is no good faith contest over the payment of wages.  In this regard, the WPCL sets forth the following requirement:

In case of a dispute over wages, the employer shall give written notice to the employe or his counsel of the amount of wages which he concedes to be due and shall pay such amount without condition within the time set by this act. Acceptance by the employe of any payment made hereunder shall not constitute a release as to the balance of his claim.

43 P.S. § 260.6 [emphasis added].

Quite significantly, the WPCL defines an “employer” as follows:

"EMPLOYER." Includes every person, firm, partnership, association, corporation, receiver or other officer of a court of this Commonwealth and any agent or officer of any of the above-mentioned classes employing any person in this Commonwealth.

43 P.S. § 260.2a.  To be clear, the inclusion of every “person,” “agent,” and “officer” within the definition means that each such representative of an employer who played an active role in decision-making may be held personally liable – and subject to not only civil damages, but also criminal penalties.  For obvious reasons, employers need to know their obligations under the law . . . and employees need to know what their rights and remedies are when separated from employment!

If you have questions regarding wages, please contact Eric G. Marttila at (215) 345-8888 or emarttila@highswartz.com

Our attorneys in Bucks County and Montgomery County are here to assist you.

The information above is general: we recommend that you consult an attorney regarding your specific circumstances.  The content of this information is not meant to be considered as legal advice or a substitute for legal representation.