Kathleen Duffy Bruder

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Back in 2015, Pittsburgh enacted a paid sick leave ordinance, following a trend among cities throughout the country. Pittsburgh’s paid sick leave ordinance required employers with fifteen employees or more to provide up to forty hours of paid sick leave per calendar year. Employers with less than fifteen employees were not spared. The ordinance required that those employers provide up to twenty-four hours per calendar year. The impact: 50,000 workers would receive paid sick leave.

But, what authority did Pittsburgh have to impose such a requirement?

The Pennsylvania Restaurant and Lodging Association, among others, challenged whether Pittsburgh actually had authority to enact the ordinance. Initially, the trial court found that the Steel City had no such authority. Pittsburgh appealed, arguing that because it had adopted a Home Rule Charter, it had authority to exercise broad powers and authority.

A few weeks ago, the Commonwealth Court of Pennsylvania issued its opinion, agreeing with the trial court that Pittsburgh indeed lacked the necessary authority. The court found that the Home Rule Charter Law has an exception with respect to the regulation of businesses. The exception specifically provides that “a municipality which adopts a home rule charter shall not determine duties, responsibilities or requirements placed upon businesses, occupations and employers . . . except as expressly provided by [separate] statutes . . . .” Although Pittsburgh attempted to point to various statutes which it felt provided it with the needed authority, the court was not convinced. Struck down by the court, it was – and remains – the worst of times for Pittsburgh’s paid sick leave ordinance.

But, what about Philadelphia? It is a home rule charter municipality. It has a paid sick leave ordinance. Does the Commonwealth Court’s opinion effectively render its ordinance invalid, too? Nope. Philadelphia’s authority is derived from a different law, which applies only to cities of the first class (oh, and Philly is the only First Class City in Pennsylvania under the law). It includes no such limitation on the regulation of businesses. Yet, while Philadelphia’s statute may be unaffected by the court’s opinion, it may not be best of times for Philadelphia’s ordinance either. The Pennsylvania State Legislature is making efforts to affect Philadelphia and all municipalities. Senator John Eichelberger’s Senate Bill 128 would ban municipalities from passing sick leave and other leave requirements that are stronger than those required by federal and state governments. The bill was voted out of committee and is set for consideration by the Senate.

So, for our blog subscribers with businesses only in the city limits of Pittsburgh, there is no requirement that you establish a paid sick leave program for your employees. However, Philadelphia’s paid sick leave ordinance remains alive and well, and you must abide by its requirements. While some do not expect the General Assembly to move this bill through both chambers before the end of the current session, we will track the bill’s progress and update this blog should it be considered and voted on by the Senate. So, stay tuned for future posts on legislation effecting Philadelphia’s and all municipalities’ authority to impose paid sick leave requirements.

On April 17, 2016, Pennsylvania Governor Tom Wolf signed the Medical Marijuana Act (MMA), which legalizes medicinal marijuana in Pennsylvania. The MMA, which takes effect on May 17, 2016, includes various provisions related to employment, and we have received many questions regarding what employers must, can and cannot do as a result of the new law. The simple answer is that, for the time being, we do not believe that employers are required to take immediate action. No immediate changes to your drug and alcohol policies or how you deal with drugs in the workplace are necessary for now, but stay tuned.

The MMA requires the Department of Health (“Department”) to promulgate full regulations within 18 months, and the Department is also required to begin publishing temporary regulations no later than six months from the Act’s effective date. Accordingly, we expect further guidance before the end of 2016 and anticipate frequent changes to the rules and regulations surrounding the MMA and its interpretation thereafter.

So, what do you need to know about the law now?

  • The MMA contains an employment anti-discrimination provision that states as follows:

No employer may discharge, threaten, refuse to hire or otherwise discriminate or retaliate against any employee regarding an employee’s compensation, terms, conditions, location or privileges solely on the basis of such employee’s status as an individual who is certified to use medical marijuana. MMA §2103(b)(1).

This anti-discrimination provision seems clear; however, it does raise some unanswered questions.  Although more than 20 other states have legalized medicinal marijuana, for purposes of the MMA, an “individual who is certified to use medical marijuana” seemingly refers only to individuals certified under Pennsylvania law. It is unclear whether an employee who is certified in another state would be entitled to the protection of §2103(b)(1).  Also, keep in mind that it will take some time for Pennsylvania to implement the regulatory framework to begin the certification process, set up dispensaries and begin actually distributing marijuana.

  • Employers are not required to accommodate the use of medical marijuana at work and employers retain the ability to discipline employees for using marijuana at work. Along these lines, the MMA provides:

Nothing in this Act shall require an employer to make an accommodation for the use of medical marijuana on the property or premises of any place of employment. This Act shall in no way limit an employer’s ability to discipline an employee for being under the influence of medical marijuana in the workplace or for working while under the influence of medical marijuana when the employee’s conduct falls below the standard of care normally accepted for that position. MMA §2103(b)(2).

While employers retain the right to discipline users of medical marijuana if they are “under the influence” at work, we do not yet know what is meant by “under the influence.” It remains to be seen which definition of “under the influence” will apply to potential employee discipline.

  • The MMA prohibits certified users from performing certain safety-sensitive jobs while “under the influence” of medicinal marijuana, including: (1) operating or being in physical control of chemicals which require a permit issued by the federal government, state government, federal agency or state agency; (2) operating or being in control of high-voltage electricity or any other public utility; (3) performing any employment duties at heights or in confined spaces, including, but not limited to, mining; (4) performing tasks that the employer deems life-threatening to either the employee or any employees of the employer; and (5) performing any duty that could result in a public health or safety risk. MMA §510.
  • The MMA does not require employers to “commit an act that would put the employer or any person acting on its behalf in violation of federal law.” MMA §2103(b)(3). For example, an employer would not be required to accommodate medicinal marijuana use if such accommodation violates federal DOT regulations.
  • The MMA does not, currently, supersede an employer’s rights under the ADA. For example, under current interpretations of the law, employers are not prohibited by the ADA from discharging an employee who tests positive for marijuana, even if the use is pursuant to a valid prescription. This could change, however, as the MMA evolves and as we further understand how “under the influence” will be defined in Pennsylvania. Further, the EEOC may change its position on the protected nature of medical marijuana as more states allow its use.

As with any new law, we have much left to learn. The McNees Labor and Employment Group will be closely monitoring the implementation of the temporary and permanent MMA regulations. We will keep you advised as things develop and are hopeful that the temporary regulations will address some of our unanswered questions, including: (1) what is meant by “under the influence;” and (2) whether the anti-discrimination provisions apply to those certified to use medical marijuana in other states. In the meantime, should you have specific questions about the law, your policies or your employees, please do not hesitate to contact any member of the McNees L&E Group.

On July 1, 2015, Governor Tom Wolf signed into law Act 15 (House Bill 1276), which amends Pennsylvania’s Child Protective Services Law (CPSL) to clarify the requirements of employers and volunteer-based organizations to provide for criminal background checks and child abuse clearances of their employees and volunteers who work directly with children.  Act 15 provides much-needed, and desired, clarification to a well-intentioned statute that had a very broad effect.

Prior to the passage of Act 15, the CPSL, among other things, required employees and volunteers who are responsible for a child’s welfare or “having direct contact with children” to complete three background checks:  (1) a state criminal history check; (2) a state child abuse clearance; and, (3) an FBI criminal background check.  For purposes of the CPSL, a “child” is an individual under age 18.  Individuals “having direct contact with children” were defined broadly and included those with “the care, supervision, guidance or control of children or routine interaction with children.”  The ambiguity of this definition, as well as other provisions of the statute, generated confusion for employers and volunteer-based organizations, which struggled to identify which employees and volunteers were be subject to the background check requirements.  There was also significant concern about the cost of complying with the requirements for employees and, especially, volunteers.

While the CPSL background check requirements were part of many measures passed in 2013 to help protect children and were well-intentioned, the ambiguity of the statute caused confusion and raised significant concerns for employers and volunteer-dependent organizations.  Recent amendments to the CPSL included numerous revisions that were designed to provide much-needed clarification and address many of the concerns raised by employers and volunteer-based organizations as well as entities that often, but not regularly, use volunteers in day-to-day operations such as school districts.  Most notably for employers, the amendments have clarified and narrowed the pool of employees and volunteers that will be considered to have “direct contact with children.”  As amended, the CPSL now clarifies that “routine interaction” with children is “regular and repeated contact that is integral to a person’s employment or volunteer responsibilities.”  The amendments also streamline definitions so the statute is written in furtherance of the intent of the bill.  Additionally, the amendments extended the obligation to renew the background checks from every three years to every five years.

Also significant is a welcome exemption for colleges and universities.  These institutions of higher education are now exempted from obtaining clearances for employees whose contact with children involves matriculated students who are enrolled with the institution or prospective students visiting the institution.  Additional exemptions include but are not limited to administrative employees who have no direct contact with children, minor employees between the ages of 14 through 17 with other qualifying conditions, as well as employees or volunteers with a J-1 visa and certain qualifying conditions.

In addition to narrowing the breadth of the background check requirements, Act 15 also includes provisions easing the financial burden related to these requirements.  Specifically, the amendments codified a waiver of certain background check fees announced by Governor Wolf in mid-June 2015.  Effective July 25, 2015, the fees for the state police criminal history and child abuse clearance checks will be waived for volunteers and reduced for all other applicants from $10 to $8 each.  Those needing background checks for employment-related reasons remain responsible for the cost. The fee waiver does not apply to the FBI background check, which is the most expensive of the three required checks.

While the requirement to complete these checks for new employees “having direct contact with children” has been in effect since January 1, 2015, the deadline for compliance with respect to new volunteer background checks is extended under these recent amendments to August 25, 2015.  Employees who were existing employees as of January 1, 2015, but who had not completed the required background checks within the past five years, must complete the checks by December 31, 2015.

Although Act 15 provides welcome clarification of who must comply with background check requirements, those employers, volunteer-based organizations,  and school districts affected by the law must take prompt and significant steps in order to meet their obligations under the law.  If you have questions about your obligations under the Child Protective Services Act and the effect of these recent amendments on your obligations, please contact any member of our Labor & Employment Practice Group or Kathleen Duffy Bruder in our Government Relations Group.