The rate of COVID-19 infection is currently at an all-time high, with over 200,000 new cases daily in the United States (with concerns that these numbers will only increase throughout the coming winter). In response, many states, including Pennsylvania, have instituted new mitigation and quarantine orders. In Pennsylvania, these orders require employers to mandate telework unless impossible, and to implement mask-use requirements, cleaning measures, and social distancing at their physical locations. They also limit businesses in both their indoor and outdoor event and gathering sizes. Lastly, they require possible quarantine for individuals and employees entering the state or when returning from travel. Failure to comply with these orders may subject employers to various penalties and fines.
In addition to increasing restrictions, the Wolf Administration has announced that it will be stepping up enforcement efforts, issuing citations and fines, and possibly regulatory actions for repeat offenders. (see Press Release, Public Health, www.governor.pa.gov, 11/23/20). Pennsylvania agencies, including the police, Liquor Control Board, Department of Agriculture, Department of Health, Department of State, and Department of Labor and Industry are authorized to enforce these orders as a disease control measure under the Disease Prevention and Control Law of 1955 and the Administrative Code of 1929. Violations and citations may also be cited under The Liquor Code, 47 P.S. 4-494, which provides authority for issuance of fines, revocation of licenses, and possible imprisonment, and the Crimes Code, 18 Pa. C.S. 5101, which provides that a person commits a misdemeanor of the second degree by intentionally obstructing the administration of law or other government function. 18 Pa. C.S. 5101.
The Wolf Administration has indicated that the decision to issue a warning or citation is made on a case-by-case basis and determined by each unique situation. Persons who fail to comply with an order may be fined between $25 and $300. For businesses, the Department of Health will send a warning letter informing the business of potential consequences, which include fines and closures if the business is not compliant with mitigation orders. If the business remains uncompliant, it risks referrals to the Pennsylvania State Police or regulatory agencies, further fines, and possible closure. In today’s climate, Pennsylvania businesses must carefully weigh the risks of failing to comply with the Administration’s mitigation orders.
The Occupational Safety and Health Act (OSHA) contains a “General Duty Clause,” which requires that an employer “shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees…” 29 U.S.C. § 654. There is little argument that COVID-19 is a “recognized hazard” capable of causing death or serious harm to employees. Therefore, this section requires that employers take measures to prevent their employees from being exposed to the disease. To better assist employers in meeting their obligations in this regard, OSHA issued general guidance this past summer. https://www.osha.gov/Publications/OSHA4045.pdf. This guidance provided a number of advisory recommendations and options to consider when designing a safety plan for employees to return to work. Ultimately, employers were provided with a degree of discretion as to which measures to implement based upon their unique circumstances and business needs.
Unfortunately, the rise in COVID-19 infections has now led to fairly stringent state orders mandating safety measures as described above. These mitigation and quarantine orders do not allow for the same degree of discretion for employers. OSHA’s guidance specifically directs employers to “continually monitor federal, state, territorial, tribal, and local government guidelines for updated information about ongoing community transmission and mitigation measures…” (See page 3 of the guidance). Accordingly, there may be risk/exposure to liability for failure or alleged failure to adhere to the requirements of the General Duty Clause. In such an instance, the employer may not only be subject to the outlined state-issued fines and penalties, but could also be at risk for much more considerable exposure under OSHA and possible civil liability.
Strict compliance continues to be increasingly frustrating and burdensome. The degree of risk for consequence for violation of state or federal guidelines remains uncertain at present- they have not been defined nor vetted. Employers would do well to make a very careful and deliberate review of their business and their COVID-19 safety plan in light of these orders. Where compliance is impractical or difficult, an employer needs to consider the totality of the risks involved and work to prepare an effective safety plan that addresses these concerns. The attorneys of our Employment Law Group are always available at 1-888-488-2638 to discuss any of these issues.