New COVID-19 Orders: Business Update Part 8

On November 17, 2020, Pennsylvania’s Secretary of Health (SOH) announced an update on the growing number of cases in Pennsylvania and amended certain provisions of the targeted mitigation order. Less than a week later, on November 23rd, the SOH and Governor Wolf announced sweeping changes to the prior regime of targeted mitigation measures. This flurry of activity comes on the heels of Commonwealth officials stating that Pennsylvania would not go back into the phases scheme from spring and summer. Even though cases have skyrocketed in almost every county, the governor and SOH have not reimposed these phases. However, these November 17th and 23rd orders bring Pennsylvania closer and closer to what it saw in the yellow and red phases. If cases continue to increase, especially if Pennsylvania experiences strains on its healthcare system, businesses should anticipate further restrictions that will look a lot like what was the state of things in spring and summer.

The following update provides an overview from the SOH’s November 17th orders and the more substantial restrictions from the governor’s and SOH’s November 23rd orders. These requirements apply to all businesses unless otherwise noted.

November 17th Orders: Currently Effective

  • Expanded Masking Order
    • Pennsylvania has been under a universal masking mandate since July. This new order expands what was already required in the previous order by eliminating most of the exceptions to masking other than age (under 2), health, safety, and disability.
    • All persons, when not with members of their own household, must wear masks inside, regardless of the amount of distance those persons are able to maintain between each other.
      • This means that, unless employees are in separately enclosed offices or high-walled cubicles that function as offices, they must wear masks while at work unless they are eating or drinking.
      • If employees are outdoors, physical distancing of 6 feet may replace the mask requirement, so long as this distance is maintained the entire time and is not merely intermittent or temporary.
    • The new order reminds that businesses are required to ensure that all people that enter the business premises wear a mask. Businesses must also post signs reminding employees and customers of this order and its requirements.
    • In an expansion from previous mask orders and enforcement, businesses may now deny entry to a person who cannot or will not wear a mask so long as the business can offer that person a reasonable accommodation—such as providing a mask or face shield, curbside pickup, delivery, or innovative solutions that do not require the person to enter the business premises.
    • Enforcement/Liability: while no changes appeared in the November 17th order, one of the subsequent November 23rd orders addresses this issue narrowly, and will be explained in more detail below.

 

This November 17th order reinforces that the Commonwealth finds that the wearing of masks is an integral measure in reducing the spread of the virus. With this indication in mind and the backing of the SOH’s orders, many businesses are opting to make masks a required part of an employment position and adding the requirement to their disciplinary schemes.

  • Traveler Testing – Quarantine Order
    • Pennsylvania’s Department of Health has maintained a list of states where persons returning to Pennsylvania from those states are encouraged to quarantine upon arrival.
    • This new order expands those provisions and makes them mandatory:
      • First, the order applies to travelers that are entering Pennsylvania from any other state or country, whether returning from travel or visiting.
      • Second, the order makes mandatory that those travelers must either present a negative COVID-19 test taken within 72 hours prior to entering Pennsylvania or quarantine for 14 days after entering Pennsylvania.
      • Third, there are several exceptions, including traveling for medical care and the military, traveling through the Commonwealth to another state, regularly traveling for work, and complying with a court order such as custody exchanges.

Employers should look at their current pandemic travel and return to work policies to see how they align with these new requirements. In order to avoid a potential discriminatory treatment pitfall, employers should consider adopting a blanket policy that all employees who travel outside of the Commonwealth for any reason must either present a negative test or quarantine for 14 days.

November 23rd Orders: Effective November 27, 2020

  • Telework Requirement
    • All employees must telework/work from home unless the work cannot be done from home. If a job or work cannot be performed via telework, then in-person work may continue under the applicable health and safety orders.

 

  • Cleaning (these are a carryover from prior orders which are still in effect)
    • Implement CDC protocols for frequently cleaning high touch surfaces for all facilities conducting in-person operations.
    • Stagger hours, arrival or departure times to allow adequate time to clean or restock based on building size and the number of employees and customers.
    • Designate an employee to wipe down shopping carts, baskets, or similar items between each use.
    • Stagger and space registers and checkout areas so that they can be wiped down at least once an hour and so that physical distancing can be observed both during use and cleaning.

 

  • Mitigation Measures (these apply regardless of possible virus transmission at the business)
    • Implement temperature screenings before employees enter the business premises, and send employees home who log or register a temperature of 100.4 degrees Fahrenheit or above.
    • Reinforce measures to keep employees at least 6 feet apart while on the business premises, whether that is entering or starting work, during work, breaks, or downtime, and while leaving work. Employees should not be congregating or sitting across from one another during breaks.
    • Conduct meetings or other gatherings of employees virtually whenever possible.
    • Clean common areas regularly and between shifts.
    • Provide ready access to handwashing facilities and schedule regular handwashing breaks if necessary.
    • Provide a sufficient number of employees or personnel to perform the above requirements, particularly regarding cleaning, access control, and social distance enforcement.

 

  • Contact Tracing
    • Identify employees and customers, to the extent possible, who were in close contact (within about six (6) feet for about 15 minutes) with a person with COVID-19 from the period of 48 hours before symptom onset (or 48 hours prior to test date if asymptomatic) to the time at which the person isolated.
      • Upon request, provide those names and contact information to the Pennsylvania Department of Health or a local health department.

 

  • Response to Possible COVID-19 Exposure on Business Premises
    • If an employee becomes sick during the workday or is otherwise diagnosed with or has tested positive for COVID-19, that employee must be sent home immediately and isolate according to Department of Health and CDC protocols.
    • An employee that was in close contact (within six (6) feet for 15 minutes) with a person who has been diagnosed with or has tested positive for COVID-19 may also not work in-person and must be sent home to quarantine.
    • The above requirements apply regardless as to whether the diagnosed or positively tested employee has symptoms or not and regardless or whether the close contact has symptoms or not. Close contact, diagnoses, and positive tests are automatic removal from in-person work.

 

  • Businesses with In-Person Operations that Also Serve the Public
    • Increase signage throughout the business premises explaining requirements for masks and distancing.
    • Clearly post and identify a maximum business premises occupancy limit at every entrance, based on the occupancy limitations described below.
    • Make aisles one-way if physical distancing cannot be maintained, place floor markers to indicate six (6) feet of distance to help customers comply.
    • At checkout, either install plexiglass shields or implement other measures that either physically block employee and customer interaction or provide six (6) feet of distance between employees and customers.
    • Place hand sanitizer at high touch areas.
    • Provide curbside pickup or delivery where feasible.
    • Building Capacity Limitations:
      • 75% capacity for businesses serving the public
      • 50% capacity for all entertainment businesses
      • 50% capacity for gyms and fitness facilities—with a focus on outdoor activities
      • 50% capacity for spas, barbershops, nail salons, and other personal service providers—by appointment only
      • 25% capacity for bars and restaurant indoor dining, 50% if participating in the Open and Certified Pennsylvania Program
      • Nightclubs remain closed

 

  • Updated Event and Gathering Occupancy Limits
    • We wrote about these restrictions in a previous post, here, which are based on percentages of the maximum occupancy limits for a given location. These updated numbers to the occupancy limitations include gatherings of employees at work for training and other similar activities:
      • Number of People Indoors
        • 0 to 2,000—10% of maximum occupancy
        • 2,001 to 10,000—5% of maximum occupancy
        • Over 10,000—no more than 500 people
      • Number of People Outdoors
        • 0 to 2,000—15% of maximum occupancy
        • 2,001 to 10,000—10% of maximum occupancy
        • Over 10,000—5% of maximum occupancy or no more than 2,500
      • If there is no occupancy limit established—67 people per 1,000 square feet

 

  • Limitation of Liability for Enforcing Universal Masking Order Against Non-Employees
    • Most, if not all, of the orders that have impacted businesses during the COVID-19 pandemic are authorized by broad and general emergency powers found in Pennsylvania’s statutes and Constitution. The Emergency Services Management Code (“ESMC”) limits civil liability for government actors conducting emergency services and those that help the government perform those services. The ESMC also allows the Commonwealth to develop rules and regulations surrounding this limitation of civil liability in the emergency services context.
    • Under the above authority, the November 23rd orders have granted a limitation of civil liability to businesses and nonprofits that attempt to enforce the current universal mask mandate.
      • Business and restaurant owners and employees who negligently injure people or damage property when enforcing the universal masking order are immune from civil liability, but not if the injury or damage is the result of willful misconduct, gross negligence, recklessness, or bad faith.
    • There are several things to consider before a business takes advantage of this limitation of liability:
      • This is not the COVID-19 limitation of liability that most businesses were hoping for. It does not limit liability as to a business if it fails to implement mitigation measures to avoid negligent infection of employees or customers, but merely provides protections for when a business enforces the masking order and only as against its customers or other non-employee invitees. This provision does not apply to employer enforcement of the mask mandate against employees.
      • Just like the business shutdown and stay-at-home orders, using the ESMC to grant liability limitation to all businesses and nonprofits enforcing the Commonwealth’s orders is untested and novel. This grant would be ripe for a legal challenge and may change the immunity’s impact accordingly.
      • This provision would not protect a business that violates federal law, and the ADA is one such federal law that has been at the forefront of mask mandate compliance and enforcement controversies.
      • Because COVID-19 is new, and the use of this law in this manner is also new, it is difficult to predict what specific actions are protected and what actions are still prohibited. Beyond this uncertainty, it is also often times difficult for people and businesses to land their conduct in the area of negligence (protection) and not gross negligence/recklessness (liability).
    • Given these additional points and the expansion of the universal masking order, businesses might consider the limitation of liability as a backstop to help protect against close calls as to whether the business or its employees acted reasonably when enforcing the universal masking order. Rather than rely on this protection, employers and business owners should outline clear rules for when and when not to confront people who are not wearing face coverings. Furthermore, businesses should implement the expanded requirements for enforcing the masking order into their policies on mask enforcement. Those requirements can be found at the top of this update.

 

  • Increased Enforcement Measures
    • Enforcement has been relatively static since the start of the pandemic, with the Commonwealth primarily relying on individual accountability. This new enforcement regime does not vary this trend drastically, but does indicate that there will be an uptick in enforcement. Businesses are still more at risk for enforcement actions if they are independently regulated by a government entity such as the Liquor Control Board.
    • Currently, it appears that this new enforcement regime only applies to retail businesses (generally, places of public accommodation) and restaurants that violate the November 23rd However, it would not be surprising if the enhanced enforcement measures would be used against all businesses to enforce all pandemic orders.
    • Noncompliance will result in the following progressive measures:
      • After investigation and/or inspection, a warning letter to the business (businesses must clean the premises and bring themselves into compliance).
      • If a second violation is found, the business must immediately correct the violation and is now subject to citation or fines, and the business must close for 24 hours after receiving the violation notice.
      • Any additional violations will result in an immediate 24-hour closure of the business, and automatic fines, penalties, and criminal referral for obstruction of law or other government function.
      • Businesses may reopen after a closure before another inspection; however, further violations will result in increasing penalties, including licensure or regulatory actions.

 

Other November 23rd Orders that May Impact Businesses Indirectly: Effective Now or by November 30th

  • Stay-at-Home-Advisory
    • This is similar to the stay-at-home order from the spring, but this time it is simply a recommendation based on what the Department of Health and other Commonwealth agencies are observing in real time.
    • This advisory lasts until January 4, 2021.

 

  • Elective Procedures
    • Elective procedures in hospitals have been limited or curtailed. Businesses might want to watch for employees who scheduled surgeries or other procedures during the summer months while elective procedures were allowed and are now being canceled or rescheduled. This may be particularly acute during the holiday season and first of the year.

 

  • School Closures of In-Person Attendance
    • School districts have new metrics for determining when to close in-person education and transition to full remote learning so that benchmarks regarding county transmission levels and transmission within schools themselves will more directly dictate in-person versus remote learning. Businesses should be aware of this as, once these requirements are triggered, swaths of employees are likely to be impacted. Employers should be flexible and also anticipate that employees will want to take advantage of the Emergency Paid Sick Leave Act and Emergency Family and Medical Leave Expansion Act provisions from the Families First Coronavirus Relief Act, which are still effective until the end of the year.

General Exceptions to Pandemic Orders: Religious Organizations and Healthcare Providers

  • As before, and from the start of the pandemic, houses of worship and other places of congregate worship are excluded from these orders. However, if a religious organization merely sponsors an event or other gathering, it must comply with these orders. Furthermore, this exemption does not apply to the universal masking order—so churchgoers still must be masked.
  • Also, healthcare providers should look to specific guidance from their industry before determining if these new orders apply to them. Most of the new orders expressly do not apply to healthcare providers or defer to more specific guidance provided to that industry.

 

Businesses should keep in mind that the November 23rd orders expressly supersede several prior pandemic orders, including those found in the July 15th targeted mitigation orders. However, many of the more extensive employee and customer health and safety orders from spring are still in effect. This means businesses and employers should not abandon mitigation measures that are complimentary to  these November 23rd orders, unless those measures directly conflict with the above. Businesses should take these requirements seriously, and we are starting to see indications from Pennsylvania courts that following government requirements and recommendations will help show that a business acted reasonably in response to the pandemic in the face of lawsuits or charges to the contrary.

As with prior orders, the governor and SOH will develop guidance and examples concerning the implementation of these new requirements. GKH anticipates that this guidance will be released sometime the week after the orders become effective.


This update was prepared by attorneys Jeff Worley and Ian Brinkman.  This update does not constitute legal advice and has been prepared for informational purposes only. Please contact us directly with questions about your specific situation.

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