While many of Pennsylvania’s latest mitigation requirements are consistent with past orders and guidelines, businesses should review their policies and practices to ensure compliance with both state and local requirements.

With Thanksgiving upon us, Pennsylvania Governor Tom Wolf and Secretary of Health Rachel Levine announced additional mitigation orders to help stop the spread of COVID-19 during the holiday season. The new orders include targeted business restrictions and a new enforcement plan that includes liability protection for businesses enforcing the Secretary of Health’s strengthened mask-wearing order. These latest orders come on the heels of Pennsylvania’s expanded travel restrictions and required use of face coverings, which we discussed in our previous Alert.

The governor’s Mitigation, Enforcement, and Immunity Protections Order (the “Order”) is set to go into effect on November 27, 2020, and will remain in place until further notice. The Order requires businesses maintaining in-person operations to implement and continue certain mitigation efforts. The Department of Health issued a corresponding and substantially identical order, which rescinds the Order for Businesses Permitted to Maintain In-person Operations (the “April 15 Order”). Notably, the latest requirements for businesses align with, and in some cases expand upon, the objectives of the April 15 Order and include:

• Unless impossible, all businesses must conduct their operations remotely, through individual teleworking of their employees in the jurisdiction or jurisdictions in which they do businesses. 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 the Centers for Disease Control and Prevention (CDC).
• Businesses must implement required cleaning measures, which include disinfecting high-touch areas in accordance with CDC guidelines, altering hours of business so that the business has sufficient time to clean, and closing off areas visited by a person who is a case of COVID-19 and waiting a minimum of 24 hours, or as long as practical, before cleaning and disinfecting.
• Implement temperature screening before employees enter the business, prior to the start of each shift or, for employees who do not work shifts, before the employee starts work, and send employees home who have an elevated temperature or fever of 100.4 degrees Fahrenheit or higher. Require employees to practice physical distancing while waiting to have temperatures screened by placing marks at six-foot distances.
• Stagger work start and stop times for employees when practicable to prevent gatherings of large groups entering or leaving the premises at the same time.
• Provide a sufficient amount of space for employees to have breaks and meals while maintaining a physical distance of six feet, arranging seating to have employees facing forward and not across from each other in eating and break settings.
• Stagger employee break times to reduce the number of employees on break at any given time so that appropriate physical distancing of at least six feet may be maintained.
• Limit persons in employee common areas (such as locker or break rooms, dining facilities, training or conference rooms) at any one time to the number of employees that can maintain a physical distance of six feet.
• Conduct meetings and trainings or other gatherings of employees and management virtually (i.e., by phone or through the internet). If a meeting must be held in person, limit the meeting to the number of individuals permitted under the Order’s maximum occupancy limits. 
• Provide employees access to regular handwashing with soap, hand sanitizer and disinfectant wipes, including scheduling handwashing breaks as necessary, and ensure that common areas (including, but not limited to, break rooms, locker rooms, dining facilities, rest rooms, conference or training rooms) are cleaned on a regular basis, including between any shifts.
• Provide and require that employees wear face coverings during their time at the business, except to the extent the employee is using break time to eat or drink, in accordance with the Secretary of Health’s Updated Order Requiring Universal Face Coverings, dated November 17, 2020, including any subsequent amendments. Employers may issue facemasks or can approve employees’ supplied cloth face coverings in the event of shortages.
• Have a sufficient number of employees to perform all measures listed effectively and in a manner that ensures the safety of the public and employees.
• Have a sufficient number of personnel to control access, maintain order and enforce physical distancing of at least six feet.
• Prohibit nonessential 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.

The Order also reasserts contact tracing requirements and measures to take if an employee becomes sick during the workday, is diagnosed with or tests positive for COVID-19, or is in close contact with a person with COVID-19. To comply with the Order’s contact tracing requirements, businesses must identify employees and customers, to the extent possible, who were in close contact (within about six feet for about 15 minutes) with a person with COVID-19 from the period 48 hours before symptom onset (or 48 hours prior to test date if asymptomatic) to the time at which the patient isolated and, upon request, provide those names and contact information to the Pennsylvania Department of Health or a local health department. Businesses must also notify employees who were close contacts of any known exposure to COVID-19 at the business premises, consistent with applicable confidentiality laws.

The Order also outlines occupancy limits and additional requirements for businesses serving the public, the entertainment industry, gyms and fitness facilities, personal care services, food services, nightclubs and venues hosting indoor and outdoor events.

Notably, the Order provides that the below entities are engaged in essential emergency services activities and disaster services activities when enforcing the Secretary of Health’s Updated Order Requiring Universal Face Coverings, and, in doing so, are entitled to immunity from civil liability only as related to enforcement of the updated Face Covering Order, absent willful misconduct, gross negligence, recklessness or bad faith.

• Business (including not-for-profit) and restaurant owners and employees
• Commonwealth of Pennsylvania employees and authorized agents
• Personnel of local health department
• State and local law enforcement personnel
• Personnel of other authorized government agencies

In a separate attempt to reduce COVID-19 liability for businesses and other entities operating during the pandemic, the Pennsylvania General Assembly recently passed House Bill 1737 (see our previous Alert.) H.B. 1737 protects schools, child care facilities, healthcare providers, businesses and government services providers from civil liability for damages relating to any alleged or actual COVID-19 exposure “absent a showing, by clear and convincing evidence, of gross negligence, recklessness, willful misconduct, or intentional infliction of harm.” The Bill has been presented to Governor Wolf for his approval, and it remains to be seen whether it will be codified as law.

Additional Orders and Mitigation

Governor Wolf and the Department of Health also issued additional orders, including:

• The Retail Food Services Mitigation Order, which seeks to curtail traditional Thanksgiving Eve celebrations and reunions. The order prohibits the sale of alcoholic beverages at businesses in the retail food services industry after 5:00 p.m. on November 25, 2020. Under the order, no patron may possess alcoholic beverages after 6:00 p.m. The sale of alcoholic beverages can resume on November 26, 2020. Read the corresponding order from the Secretary of Health.
• The Stay at Home Advisory, in which Pennsylvanians are strongly advised to limit unnecessary travel and to gather only with members of the same household. Read the corresponding order from the Secretary of Health.
• The Public School Attestation Order, which requires public schools in counties that have been in the substantial transmission level for at least two consecutive weeks to commit to safety measures. Read the corresponding order from the Secretary of Health.
• The Secretary of Health’s Elective Procedures Order, which requires a temporary reduction in elective surgeries and procedures in regions heavily affected by the pandemic.

What This Means for Employers

While many of Pennsylvania’s latest mitigation requirements are consistent with past orders and guidelines, businesses should review their policies and practices to ensure compliance with both state and local requirements. Most significantly, the Order requires employers to implement daily temperature screenings of employees before they enter the business. Previously, businesses were required to implement temperature screenings only after a confirmed or probable case of COVID-19 in the workplace. It is unclear whether the Order requires temperature screenings to be conducted on-site or if employees can self-screen at home. Additional guidance is likely forthcoming.

Governor Wolf’s press announcement also states that law enforcement and state agencies “will be stepping up enforcement efforts, issuing citations and fines, and possibly regulatory actions for repeat offenders,” including for orders that address business safety, such as telework, occupancy, cleaning, and social distancing requirements. Specifically, “[f]ollowing a complaint about a business, the Department of Health will send a warning letter informing the business of the potential consequences, including fines and closure if the business is not compliant with the mitigation orders. If a business continues to receive complaints, it risks referral to the Pennsylvania State Police or regulatory agencies, further fines and possible closure.” Thus, businesses must ensure that they follow all mitigation orders and guidelines to avoid enforcement consequences. 

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Duane Morris has created a COVID-19 Strategy Team to help organizations plan, respond to and address this fast-moving situation. Contact your Duane Morris attorney for more information. Prior Alerts on the topic are available on the team’s webpage.

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If you have any questions about this Alert, please contact Sharon L. Caffrey, Linda B. Hollinshead, Elisabeth Bassani, any of the attorneys in our Employment, Labor, Benefits and Immigration Practice Group, any member of the COVID-19 Strategy Team or the attorney in the firm with whom you are regularly in contact.

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