On November 23, 2020 both Governor Wolf and the Pennsylvania Department of Health issued a myriad of new and intensified Orders for the establishment and enforcement of COVID-19 mitigation efforts for all businesses and residents in the Commonwealth.   In this article, we will highlight the important elements our clients must address for continued, in-person operation, including both policy development and potential implications for non-compliance.  In subsequent articles we will endeavor to summarize and analyze the intricacies of the several orders as they pertain to specific businesses and issues such as immunity from civil liability.  Please note, there has been a wealth of information disbursed by the state between last week and today.  The information we continue to provide is timely and relevant.  The changes are swift but meaningful.  Our clients must stay abreast of the advancing directives.  They are encouraged to contact our offices with questions so as to develop appropriate policies and protocols in this ever changing and difficult employment environment. 

Last week, the Governor and Department of Health issued updated Orders particularly relating to mask requirements, social distancing and travel.  They solicited voluntary compliance.  That was last week.  The New Orders augment last week’s directives and magnify the responsibility of employers through increased enforcement efforts.  Now, we must adhere to the following General Requirements for Businesses Maintaining In-Person Operations. Pertinent guidelines are as follows:

Teleworking:

Unless impossible, all businesses must conduct their operations remotely, through individual teleworking of their employees. Where telework is impossible, employees may conduct in-person business operations, provided that the business fully complies with this Order, and all existing and future applicable guidance issued by the Wolf Administration, the Department of Health, and Centers for Disease Control and Prevention (CDC). To this end, employers must define “impossible”.  They are encouraged to review, practically and objectively, what tasks can be performed remotely and what absolutely must be done on-site.  We recommend an objective review, with employee participation, and documentation of all mitigation efforts.  The process and written documentation of mitigation efforts may prove necessary as affirmative defense to any future allegation of non-compliance. 

Cleaning and Mitigation Protocols:  In addition to maintaining pre-existing cleaning protocols established in accordance with CDC guidelines, in spaces that are accessible to customers, tenants, employees, or other individuals.  Employers should again review and document efforts toward compliance. 

Mitigation Measures:  The following measures are highlights of a more comprehensive list of guidelines but spotlights efforts employers must be able to demonstrate for compliance.

Implement temperature screening before employees enter the business, prior to start of each shift or work day. Send employees home that have an elevated temperature or fever of 100.4 degrees Fahrenheit or higher.

To avoid gathering of large groups, stagger work start and stop times as well as break times. . Provide sufficient space for employees to have breaks and meals. Conduct meetings and trainings or other gatherings of employees and management virtually (i.e., by phone or through the internet.)

Provide and require that employees wear face coverings during their time at the business, in accordance with the Secretary of Health’s Updated Order Requiring Universal Face Coverings, dated November 17, 2020.

Have a sufficient number of employees to perform all measures listed.  Similarly, ensure sufficient number of personnel to control access, maintain order, and enforce physical distancing of at least six feet.

Prohibit non-essential visitors from entering the premises of the business.

Make all employees aware of these required procedures by communicating them, either orally or in writing, in their native or preferred language, as well as in English or by a methodology that allows them to understand. Document all advanced policies and corresponding corrective action.

According to the press release issued by the Governor’s Office enforcement efforts will be advanced in all aspects of mitigation efforts but particularly in the following areas of address:

• Out of State Travel
• Mask-wearing
• Business Safety, including telework, occupancy, cleaning, social distancing
• Restaurant Mitigation, including occupancy, masking, social distancing, self-certification
• Gathering Limits
• School Attestation and Mitigation

Citations may be written under the Administrative Code of 1929 71 P. S. § 1409 and/or the Disease Prevention and Control Law of 1955 35 P.S. § 521.20(a). The decision whether to issue a warning or a citation will be made on a case-by-case basis and determined by the unique circumstances of each encounter.  Failure to comply with an order may result in fines including fines for individuals of between $25 and $300 dollars.  Enforcement agencies include the Pennsylvania State Police, local law enforcement, personnel from the departments of Agriculture and State, and PA Liquor Control Board stores who interact with visitors.

Moreover, the Department of Health, will continue to investigate complaints against businesses.  It has developed a website, form and intake process.  It intends to use additional staff from other state agencies for enforcement. This is a noted enhancement of enforcement efforts from last week’s plea for voluntary compliance. Businesses will first receive a warning letter informing them of the potential violations and consequences, including fines and closure.

Governor Wolf and the Pennsylvania Department of Health have moved to a critical state of address of the COVID-19 pandemic and its impact on the citizens and the businesses of the Commonwealth.  To this point, employers have attempted to navigate the guidance provided to maintain viable business operation.  Employers and business should continue those efforts but understand the intensity of the New Orders and the ramifications for non-compliance.  Please contact our Employment Law Group for assistance at 1-888-488-2638.