For nearly a year, employers have, rightfully, focused on the health and safety of their employees. During this time, employment laws continued to develop. It is not surprising that some of these changes may have been overlooked during a global pandemic. The following will review just a few of the many employment law changes that took place in 2020, with specific attention on Pennsylvania updates.
Philadelphia Prohibits Wage History Inquiry and Consideration
The Philadelphia Wage Equity Ordinance, originally passed in 2016, finally went into effect on September 1, 2020, after a prolonged legal battle[1]. The Ordinance prohibits applicable Philadelphia employers from inquiring “about a prospective employee’s wage history, require[ing] disclosure of wage history, or condition[ing] employment or consideration for an interview or employment on disclosure of wage history.” Employers are further prohibited from relying on the wage history of a prospective employee in determining their wages unless the employee “knowingly and willingly” disclosed their wage history to the employer. Retaliating against a prospective employee for failing to provide information in response to a wage history inquiry is also prohibited.
Employers in Philadelphia should carefully review their application, interview, and compensation materials, as well as re-train staff participating in recruiting, hiring, and compensation to ensure compliance with the new salary inquiry and consideration prohibitions.
Pennsylvania Employers Required to Provide Notice of Unemployment Compensation
Act 9 was one of the first employment law changes enacted by the Pennsylvania legislature in response to the COVID-19 pandemic which will have a continuing impact on employers. The Act requires Pennsylvania employers whose employees separate from employment or have a significant reduction in hours, for any reason by either party, to provide notice to the employee of the existence of unemployment compensation and the requirements for applying for benefits.
The required notice is not an opinion by the employer on the employee’s eligibility for benefits nor is it a promise that the employer will not contest the application for benefits. Rather, the notice is purely instructive, intended to streamline the unemployment process and provide necessary information to employees who may apply for unemployment benefits.
The Act 9 unemployment compensation notice should be provided to all Pennsylvania employees who are separating from employment or whose hours are significantly reduced, for any reason.
United States Supreme Court Holds that Sexual Orientation and Gender Identity and Expression are Protected Classes
In Bostock v. Clayton County, Georgia, the United States Supreme Court held that the protected class of “sex” under Title VII includes sexual orientation and gender identity and gender expression.
Specifically, the Court applied the “but for” test under Title VII applicable to cases involving alleged sex discrimination. The Court held that “but for” the subject employees’ sexual orientation or gender identity, which are related to their sex, the adverse employment actions would not have occurred.
As a result of this ruling, employers should carefully consider taking, or refusing to take, any employment action based upon a persons’ sex, including their sexual orientation, gender identity or expression. Employers should also update policies and training to ensure that prohibitions on discrimination and harassment based on a protected class include sexual orientation, gender identity, and gender expression.
Pennsylvania Increases its Minimum Salary Threshold for Exempt Employees
On October 3, 2020, Pennsylvania increased the minimum salary threshold required to classify an employee as exempt. This new minimum, $684 per week ($35,568 annually), now parallels federal exemption requirements.
However, later this year on October 3, 2021, the salary minimum will eclipse the federal exemption threshold and accelerate to $780 per week ($40,560 annually). Increases will continue in 2022, 2023, and then every third year thereafter based on the earning of the 10th percentile of exempt employees.
Employers should begin to review the compensation of exempt employees to ensure compliance with the new required minimums. If an employee falls below the threshold, employers should plan to either adjust salaries or reclassify employees appropriately.
Discrimination Based on Hairstyle Prohibited in Allegheny County
Also in October 2020, Allegheny County and the City of Pittsburgh amended their respective ordinances relating to antidiscrimination to prohibit discrimination based on hairstyle, commonly associated “with a particular race, national origin, gender, gender identity or expression, sexual orientation, or religion”. See Allegheny County Ordinance 11599-20 and City of Pittsburgh Ordinance 2020-0769.
Employers should review appearance policies to ensure that any conditions, terms, or restrictions regarding hairstyle are compliant with the Ordinances.
Pennsylvania Upholds the Right of Private Action Under Medical Marijuana Act 16
Pennsylvania’s Act 16, regarding medical marijuana, provides that an employer may not discriminate against applicants or employees “solely on the basis of such employee’s status as an individual who is certified to use medical marijuana.”
However, the Act also provides that no employer shall be required to accommodate an employee’s use of marijuana on the employer’s premise. Additionally, the Act enumerates a number of instances in which an employee shall not be permitted to perform certain tasks while “under the influence” of cannabis.
This lack of clarity, particularly regarding issues of permissible use, accommodation of use other than in the workplace, and what constitutes “under the influence” have caused a dramatic increase in workplace related medical marijuana litigation in 2020.
One such case of first impression, Hudnell v. Thomas Jefferson University Hospitals, Inc., saw the Pennsylvania’s Eastern District U.S. District Court hold that an employee could pursue a right of private action under Act 16. Meaning that if an employee believes their rights under the Act were violated, they can individually bring a claim in court; they do not have to wait for an agency to pursue action on their behalf.
Most recently, the Commonwealth Court held in Pittsburgh Water & Sewer Auth. v. Unemployment Comp. Bd. of Review, that unemployment compensation was properly provided to an employee who tested positive on a drug screen but presented a valid medical marijuana card. The court found significant that the employer “excuses positive drug test results when employees furnish the MRO [medical review officer] a prescription” and that the employer’s policy permitted the use of “legal drugs,” the definition of which included “prescription medications.” The court held that the employee by way of the valid medical marijuana card had been “prescribed” the drug they tested positive for and fit within the definition of the employer’s policy, and the related exceptions.
This case specifically should serve as a caution to employers on the importance of having a detailed medical marijuana policy. This is particularly true for employers who want to exclude medical marijuana from the “legal drugs” they except from drug testing or that they accommodate or permit on premises.
Medical marijuana, particularly in the workplace and in Pennsylvania, is a rapidly developing area of law. Prior to making adverse employment decisions or updating policies, employers should carefully consider updates and developing requirements or protections.
Pittsburgh Requires Paid Leave for COVID-19
The City of Pittsburgh enacted the COVID-19 Emergency Sick Leave Act, effective December 8, 2020. The Act will be in force until such time as either the Commonwealth or the City’s state of emergency related to the global pandemic is lifted.
The Emergency Ordinance requires any employer located within the City of Pittsburgh who employs 50 or more people to provide up to 80 hours of paid leave for certain enumerated reasons related to COVID-19. This leave is in addition, and must be provided first, to the City’s regularly required Sick Leave or any other regular paid time off an employee may be entitled. However, if an employer has an existing COVID-19 paid leave policy or complies with state or federal regulations that provided leave specific to COVID-19 that meet or exceed the Emergency Act’s requirement, the employer may substitute that leave.
As the mandatory leave requirements under the Family First Coronavirus Response Act (FFCRA) expired on December 31, 2020[2] and given such mandates only applicable to employers with less than 500 employees, the City’s new Emergency Act may extend required COVID-19 paid leave to additional employers. When evaluating leave requests employers should consider the reasons for leave and any applicable required leave, including the order in which leave must be applied.
Considerations for 2021
The above only highlights a few of the many employment law developments Pennsylvania saw in 2020. As employers continue to manage worker safety and health in 2021, they must balance this with an eye towards continuing employment law changes and emerging developments. Experienced employment law counsel can assist with the ever-evolving law and best practices to help improve the workplace.
If you have any questions regarding these employment law updates, or any other employment-related legal issue, please contact Leah K. Sell.
Leah Sell is an Associate with Leech Tishman, and a member of the firm’s Employment & Labor, Corporate, Cannabis and LaunchPad Practice Groups. She is based in the firm’s Pittsburgh office and can be reached at 412.261.1600 or lsell@leechtishman.com.
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[1] The City states that the Ordinance will assist in narrowing the wage gap; the U.S. Census Bureau found in 2015 that women in Pennsylvania earn 79 cents for every dollar earned by a man. Opposition to the Ordinance cited free speech infringement. After several appeals, the Third Circuit upheld the Ordinance in its entirety on February 6, 2020 in Greater Philadelphia Chamber of Commerce v. City of Philadelphia.
[2] Employers who voluntary comply with FFCRA will be able to continue to participate in the tax credit for paid leave through March of 2021, so long as the leave, employer, and employee are otherwise eligible.