Pittsburgh skyline. Photo by ESB Professional/shutterstock

The Pennsylvania Supreme Court is set to decide whether the city of Pittsburgh has the authority to force employers to offer paid sick leave and building owners to ramp up emergency response training.

The Commonwealth Court en banc held in May that the city overstepped its bounds in enacting the Paid Sick Days Act and the Safe and Secure Building Act.

In a May 17 unreported opinion in Pennsylvania Restaurant and Lodging Association v. City of Pittsburgh, the court ruled 6-1 to uphold an Allegheny County trial court decision invalidating the city’s Paid Sick Days Act.

In a separate opinion issued the same day in Building Owners and Managers Association of Pittsburgh v. City of Pittsburgh, the court en banc, again split 6-1, also upheld a trial judge’s ruling blocking the city’s enforcement of its Safe and Secure Building Act.

In both cases, the appeals court agreed with the lower court that Pittsburgh lacked authority to adopt the ordinances under the Home Rule Charter and Optional Plans Law, which limits municipalities’ ability to impose affirmative duties on employers and businesses.

On Nov. 29, the Supreme Court issued orders consolidating the cases and agreeing to hear arguments on a single question: “Did the Commonwealth Court err in holding that the State Emergency Management Services Code, the State Disease Prevention and Control Act Law, the Second Class City Code, and the Home Rule Charter and Options Law failed to satisfy the ‘expressly provided by statute’ exception, and that the city of Pittsburgh therefore lacked the authority to pass the Paid Sick Days Act and the Safe and Secure Buildings Act?”

The Paid Sick Days Act, signed into law in August 2015, requires employers to provide employees with a minimum of one hour of paid sick leave for every 35 hours they work. Employers with fewer than 15 employees must permit the accrual of up to 24 hours of paid sick leave per calendar year and employers with 15 or more employees must allow for the annual accrual of up to 40 hours of paid sick leave.

But the Pennsylvania Restaurant and Lodging Association, along with several local businesses, challenged the ordinance by filing a declaratory judgment action. The trial court ruled in their favor, finding that the city was unauthorized to enact the Paid Sick Days Act under Section 2962(f) of the Home Rule Charter Law, which states that municipalities that adopt a home rule charter “shall not determine duties, responsibilities or requirements placed upon businesses, occupations and employers … except as expressly provided by statutes.”

On appeal, the Commonwealth Court agreed, reasoning that the Paid Sick Days Act violates the Home Rule Charter Law by imposing several affirmative duties on employers, including mandating that they provide their employees with a minimum amount of paid sick leave.

“We recognize that paid sick leave for employees is a laudable goal,” Judge Michael H. Wojcik wrote for the majority in Pennsylvania Restaurant. “The power to achieve that goal rests with our General Assembly, however, through statewide legislation addressing paid sick leave or, alternatively, through legislation vesting authority to do so in local municipalities.”

The majority rejected the city’s public policy argument that the ordinance is aimed at improving public health, saying that “neither the wisdom nor the purpose of the Paid Sick Days Act is material to the only issue before us, which is whether the city had authority to adopt this ordinance.”

Wojcik was joined in the majority in both cases by President Judge Mary Hannah Leavitt and Judges Renee Cohn Jubelirer, Robert Simpson, P. Kevin Brobson and Patricia A. McCullough.

Judge Joseph M. Cosgrove dissented in both cases, arguing in the paid sick leave case that the majority read into the Home Rule Charter Law “restrictions which are not there.”

“This case involves an effort to protect health and safety,” Cosgrove said. “That indeed is what municipalities are for. In exercise of the political power to do so, the present ordinance was enacted. If the people of Pittsburgh disagree with this action, they will address their dissatisfaction through the political process. It is not for this court to interfere.”

Cosgrove incorporated this reasoning into his one-paragraph dissent in Building Owners as well.

In that case, the majority invalidated the city’s Safe and Secure Building Act, which requires “security officers” and “building service employees” who work in commercial office buildings, retail buildings of at least 100,000 square feet, museums and cultural institutions of at least 100,000 square feet to receive training on emergency identification, prevention and response from a school certified by the city’s Fire Bureau.

Again finding that the ordinance impermissibly seeks to impose affirmative duties on employers, the majority waved off an argument advanced by the Service Employees International Union Local 32BJ, which was the city’s co-defendant in both cases.

The union had contended that the ordinance was a health regulation authorized by Section 2962(c)(4) of the Home Rule Charter Law, which allows the city “‘to enact and enforce ordinances related to building codes or any other safety, sanitation or health regulation pertaining thereto.’”

“However, in making this argument, SEIU relies on words taken out of context; significantly, it does not explain how the ordinance ‘pertains to’ building codes,” Wojcik said.

An attorney representing the city, Jordan B. Yeager of Curtin & Heefner in Doylestown, said, “We’re pleased that the court is taking a look at these cases, on two fronts: One, the city feels strongly that these are important pieces of legislation to serve the health and welfare of the residents and visitors to the city. Second, the decisions from the Commonwealth Court really stripped the concept of home rule to eliminate any meaningful effect of being a home rule municipality.”

Counsel for the Building Owners and Managers Association of Pittsburgh, Gregory A. Evashavik of Evashavik, DiLucente & Tetlow in Pittsburgh, and counsel for the Pennsylvania Restaurant and Lodging Association, Stephen J. Del Sole of Del Sole Cavanaugh Stroyd, could not be reached for comment.