On June 9, 2020, the Pennsylvania General Assembly passed a resolution titled HR 836 of 2020, which seeks to end Governor Wolf’s emergency declaration and state shutdown relative to the COVID-19 pandemic (hereinafter, COVID-19 Orders). By its own terms, the resolution explicitly terminates the state of disaster emergency declared by the Governor. It has been reported that Governor Wolf will disapprove (effectively veto) the resolution. Both sides have questioned the authority of the other relative to the matter, and the Governor has now asked the Pennsylvania Supreme Court to directly address the matter. The resulting impasse has created some uncertainty as to whether businesses must continue to comply with the COVID-19 Orders.
Existing Law: 35 Pa.C.S. § 7301(c)
The dispute is grounded in both Constitutional issues as well as the language of 35 Pa.C.S. § 7301(c), an established statute that governs the declaration and termination of states of emergency. The new bill, HR 836, specifically invokes this statute as its authority to unilaterally terminate the state of emergency. The relevant language of 35 Pa.C.S. § 7301(c) states:
- “…The state of disaster emergency shall continue until the Governor finds that the threat or danger has passed or the disaster has been dealt with to the extent that emergency conditions no longer exist and terminates the state of disaster emergency by executive order or proclamation, but no state of disaster emergency may continue for longer than 90 days unless renewed by the Governor. The General Assembly by concurrent resolution may terminate a state of disaster emergency at any time. Thereupon, the Governor shall issue an executive order or proclamation ending the state of disaster emergency…”
New Bill: HR 836
In the new resolution, HR 836, the General Assembly states that pursuant to the authority given to it under the Pennsylvania Constitution and 35 Pa.C.S. § 7301(c), it “hereby terminate[s] the Disaster Emergency declared on March 6, 2020, as amended and renewed, in response to COVID-19.” It then directs the Governor to issue “an executive order or proclamation ending the state of disaster emergency.” The Governor has indicated, however, that he will NOT issue this order and questioned whether the General Assembly has the authority under the Constitution to unilaterally declare an end to a state of emergency under 35 Pa.C.S. § 7301(c) without his consent. Thus, the effect of HR 836 and the exact powers each branch of government possess under 35 Pa.C.S. § 7301(c), will likely need to be resolved by the court system. The Governor has asked the Supreme Court to directly address the matter, so that it can be resolved in an expedited manner.
In the meantime, however, the question is how businesses should operate under the uncertainty created by this governmental standoff. In considering the language of 35 Pa.C.S. § 7301(c) and HR 836, it would appear that the safest course of action is to continue to follow the Governor’s COVID-19 Orders at this time, pending a resolution on the matter. HR 836 does NOT, by its own terms, terminate the COVID-19 Orders. As such, the enforcement of all existing COVID-19 Orders, including the business closure and safety measures, would be expected to continue. This would also be true for the orders and other guidance issued by the Department of Health relative to the COVID-19 pandemic, including the Order of the Secretary of the Pennsylvania Department of Health For a Limited Opening of Businesses, Lifting of Stay Home Requirements and Continued Aggressive Mitigation Efforts of May 8, 2020, and the Order of the Secretary for the Continued Reopening of the Commonwealth of May 27, 2020. These orders and further guidance may be found at: https://www.governor.pa.gov/covid-19/business-guidance/.
If you have any specific questions or concerns about HR 836 or its impact on your business, please feel free to call one of the attorneys in the Employment Law Group at 1-888-488-2638.