On Tuesday, November 17, 2020 the Department of Health announced “New Orders” pertaining to travel and mask restrictions for residents and businesses in the Commonwealth.  We immediately responded with articles summarizing the enhanced restrictions promulgated by these orders which become effective November 20, 2020.  Through the press conference introducing these directives, Dr. Levine implored the public for voluntary compliance.  The language of the Orders, however, demands action through policy, protocol and enforcement particularly from employers, businesses and schools. 

The Order pertaining to masks and social distancing provides in pertinent part:

A business or a school entity must:

1. Require that all people, including their employees, customers, teachers, students and visitors, wear a face covering and take reasonable steps to enforce the requirement.
2. Mitigate or eliminate employee, teacher, student, visitor, and customer exposure to people who cannot wear or refuse to wear a face covering.
3. Post prominent signs that are visible to all people—including employees, teachers, students, customers, and visitors—stating that face coverings are required by the Order of the Secretary of Health.
4. Provide reasonable accommodations to people, including their employees, teachers, students, customers, and visitors, who state they have a medical condition, mental health condition, or disability that makes it unreasonable for the person to maintain a face covering.

• Businesses may decline service to individuals who are not wearing a face covering or claiming to have a condition preventing them from wearing a face covering or an alternative to a face covering, so long as they attempt to provide a reasonable accommodation.
• Accommodations could include an alternative to a face covering, such as use of a face shield or providing service options that do not require a customer to enter the business. This may include offering curbside pick-up, delivery, or other innovative solutions.

The Order pertaining to updated travel restrictions provides:

Individuals traveling into and returning to Pennsylvania from any other State or Commonwealth or an international location, must produce evidence of a negative SARS-CoV2 (COVID-19) test from a specimen collected within 72 hours prior to entering the Commonwealth, or quarantine for 14 days.  Travelers may temporarily leave quarantine to receive testing or other necessary medical services. Travelers must arrange for the test at their own expense.

Businesses have a variety of reasons to comply, including the potential financial impact of an internal exposure to their workforce and the ethical/moral basis to stop the spread of COVID-19.    The immediate call may be for voluntary compliance but the duty is compulsory.  The Orders provide directive and guidance but employers must post policy and detail potential disciplinary consequence for their employees if they seek to actively enforce the updated protocols.  Failure to adopt a written policy advising employees of their rights, responsibilities and consequence of their actions can lead to a charge of wrongful termination.

The Department of Health has hotlines fielding calls with allegations of policy violation and non-compliance.  OSHA has instated fines under the General Duties clause for employer failure to follow and enforce safety guidelines during the pandemic.

Businesses should familiarize themselves with the specific requirements of these Orders and determine first how they may impact or apply to their workforce and then what role they will play as employer in enforcement.  Each Order contains specified terms, definitions and exceptions.

"Face covering” means covering of the nose and mouth with material that is secured to the head with ties, straps, or loops over the ears or is wrapped around the lower face.

“Physical distancing” means the practice of staying at least six feet away from others.

“Working alone” means when a person is isolated from interaction with other people with little or no expectation of in-person interruption. Examples include:

• A lone worker inside the enclosed cab of a crane of construction equipment.
• A person by themselves inside an office with four walls and a door.
• A lone worker inside a cubicle with 3 walls and a door or entryway, with walls high enough to block the breathing zone of all people walking by, and the worker’s activity will not require anyone to come inside of the worker’s workspace.
• An employee who is alone in an agricultural field or other open area with no anticipated contact with others.

Exceptions:

1. If wearing a face covering while working would create an unsafe condition in which to operate equipment or execute a task as determined by local, state, or federal regulators or workplace safety guidelines.
2. If wearing a face covering would either cause a medical condition, or exacerbate an existing one, including respiratory issues that impede breathing, a mental health condition or a disability.
3. When necessary to confirm the individual’s identity.
4. While obtaining a service that requires the temporary removal of the face covering, such as dental services.
5. When working alone and isolated from interaction with other people with little or no expectation of in-person interaction.
6. If an individual is communicating or seeking to communicate with someone who is hearing-impaired or has another disability, where the ability to see the mouth is essential for communication.

Employers do not need to re-write their handbooks but should develop and post intervening policies to enforce compliance.  They must consider accommodations to facilitate compliance where appropriate and consistent with state and federal statute.  These “New Orders” currently have no expiration date – they are effective guidelines as imposed by the PA Department of Health.

Our Employment Law Group remains available to answer questions and assist.  Please contact us at 1-888-488-2638.