Pennsylvania Governor, Tom Wolf, issued a series of new Orders, effective November 27, 2020 designed to prevent further spread of COVID-19.  One of these, the order for “Mitigation, Enforcement, and Immunity Protections,” escalates the mitigation efforts and safety measures businesses are required to follow if they continue to operate physical facilities.  For a summary of these new requirements, please see our prior Client Alert found here. 

The most recent Department of Health Order, among other things, directs all businesses that serve the public within a physical space, either indoors or outside, to require individuals entering the business to wear face coverings and deny entry to individuals not wearing face coverings, with some exceptions. In addition to outlining heightened obligations imposed upon businesses, a section of the Governor’s Order appears to grant some measure of protection to those businesses against civil liability for enforcement of the face covering mandate.

The immunity granted by the Governor was issued pursuant to 35 P. S. § 7704 (a), which ordinarily applies to State agencies and governmental agents, shielding them from civil liability for personal injury or property damage resulting from disaster services activities.  Effectively, the Order of the Governor declares that businesses (including not-for-profits), restaurant owners, and their employees are engaged in “essential emergency services activities”, thereby protected by this immunity. 

It must be noted that the immunity only applies while businesses and their employees are enforcing the Universal Face Coverings Order.  It does not apply when businesses are rendering non-COVID-19 emergency services.  It does not apply to protect an employer from the consequence of exposure to COVID-19 at the employer’s facility.  Finally, the language of the Order clearly indicates that the civil immunity does not extend to claims that may arise from the employer-employee relationship.   

Businesses should be leery of over-reliance on this provision for immunity from civil claims.  It is unclear whether the Governor has the authority to unilaterally expand legal immunity to private businesses in the unprecedented context of the current pandemic.  It is also uncertain whether any or all of this Order will be challenged.  For now, it does further substantiate enforcement of the Universal Face Coverings mandate.  We will provide timely updates as this Order is further vetted.

In the meantime, employers should review the new Orders and develop a plan for compliance with the new mandates, including the Universal Face Coverings Order.  For employers dealing with the public, a further protocol should be established to ensure enforcement of the Department of Health Order.  Overall mitigation of COVID-19 spread in the workplace should remain a top priority of all employers as the dust settles a bit on the ever-changing governmental efforts at enforcement.

The Formal Order is attached to this article.

If you have any questions on this Order (or the other new Orders), please contact one of the attorneys in our Employment Law Group at 1-888-488-2638.