Any individual traveling or returning to Pennsylvania from any other state, commonwealth or international location must provide proof of a negative COVID-19 test result or quarantine for 14 days.

With COVID-19 cases increasing across the country and the holiday travel season approaching, Pennsylvania Governor Tom Wolf announced two orders on November 17, 2020, requiring new travel restrictions and expanding the required use of face coverings. The orders were issued by Secretary of the Pennsylvania Department of Health Dr. Rachel Levine, who said they are needed “to prevent [the] spread [of COVID-19] while continuing to allow the necessary resumption of economic and social activity.” On November 16, 2020, Philadelphia Mayor Jim Kenney also announced new mandatory guidelines for individuals and businesses that are arguably some of the most restrictive in the nation, harkening back to the city’s stay-at-home order from the spring.

Pennsylvania Travel Quarantine and Testing

Beginning November 20, 2020, any individual traveling or returning to Pennsylvania from any other state, commonwealth or international location must provide proof of a negative COVID-19 test result or quarantine for 14 days upon entering Pennsylvania.

Travelers choosing to take a COVID-19 test must do so within 72 hours prior to entering Pennsylvania in order to avoid a quarantine. Further, the test must be authorized by the Food and Drug Administration and travelers―including Pennsylvania residents―who have not completed a test, are awaiting test results or cannot complete a test “must remain at their travel destination without contact with others outside their traveling party” or household. Moreover, individuals under quarantine may only leave in order to receive testing or other necessary medical services. Travelers receiving positive results must remain in isolation, whereas travelers receiving negative results may continue their intended activities.

Travelers subject to the new requirement include any individual who crosses into another state, commonwealth or international location via any form of transportation and has any interaction with an individual outside of Pennsylvania. Moreover, individuals staying anywhere outside of Pennsylvania, including in a property they own or remote area, are subject to the testing and quarantine requirements.

Only the following exemptions from the testing and quarantine order are permitted:

• Individuals traveling to and from the Commonwealth for the purposes of work.
• Individuals traveling to and from the Commonwealth for medical reasons, including individuals providing comfort and support to the patient.
• Military personnel traveling to the Commonwealth by order or directive of a state or federal military authority.
• Individuals in transit through the Commonwealth to another destination, provided that the time spent in the Commonwealth is only the amount of time necessary to complete the transit, make use of travel services, such as a highway rest stop, or make any necessary travel connection.
• Individuals complying with a court order such as custody exchanges.
• Additional exemptions may be issued in guidance documents from the Department of Health.

Pennsylvania Face Coverings

Since November 18, 2020, the expanded use of face coverings is required in Pennsylvania for every individual age 2 and older. Face coverings can be made of synthetic or natural fabric and must cover the nose and mouth and be secured to the head with ties, straps or loops over the ears or be wrapped around the lower face.

In Public

The updated order removes social distancing as a consideration when determining if a face covering is required. Specifically, individuals in Pennsylvania must wear a face covering when:

• Indoors or in an enclosed space where another person or persons who are not members of the individual’s household are present in the same space, irrespective of physical distance.
• Outdoors with others who are not members of a person’s household and unable to maintain sustained physical distance.
• Participating in a permitted indoor or outdoor event, gathering or group setting where another person or persons who are not members of the individual’s household are present.
• Participating in indoor physical activity in a gym, fitness center or group fitness classes irrespective of physical distance.
• Waiting in a public area for, riding on, driving or operating public transportation or paratransit or while in a taxi, private car service or ride-hailing vehicle, irrespective of physical distance.
• Obtaining services from the healthcare sector in settings including, but not limited to, a hospital, pharmacy, medical clinic, laboratory, physician or dental office, veterinary clinic or blood bank.
• Working in any space where food is prepared, packaged for sale or prepared for distribution to others.

Certain facilities—including hospitals, shelters, long-term care facilities, residential treatment facilities and correctional facilities—may also require visitors and residents, patients or inmates to wear face coverings even when in a living unit.

Although the updated order requires that everyone in Pennsylvania wear a face covering while indoors, irrespective of physical distance, individuals who are working alone, isolated from interaction with other people and have little to no expectation of in-person interaction may remove their face coverings. Importantly for employers, examples of working alone, as defined in the order, include a single worker inside an office with four walls and a door and a single worker inside a cubicle with three walls and a door or entryway, where the walls are 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.”

Individuals are exempt from wearing a face covering in other limited situations as well:

• 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.
• 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.
• When necessary to confirm the individual’s identity.
• While obtaining a service that requires the temporary removal of the face covering, such as dental services.
• When working alone (as defined in the order, explained above) and isolated from interaction with other people with little or no expectation of in-person interaction.
• 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. 

Businesses and Schools

Businesses and schools also have obligations under the updated order. Specifically, a business or school must:

• Require that all individuals wear a face covering and take reasonable steps to enforce the requirement.
• Mitigate or eliminate all exposure to people who cannot wear or refuse to wear a face covering.
• 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.
• Provide reasonable accommodations to all individuals 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 claim 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 pickup, delivery or other innovative solutions.

Acknowledging a concern about the manner and extent to which businesses and schools may safely enforce such measures, the order provides that a business or school should not enforce face covering requirements when it is unsafe to do so. Further, a business or school should not restrain, assault, use force or physically remove employees, teachers, students, customers or other individuals who refuse to comply with the updated order when it would not otherwise be legal to do so or would violate other laws including state and federal anti-discrimination laws.

Philadelphia Announces New COVID-19 Restrictions

Philadelphia’s “Safer at Home” COVID-19 restrictions go into effect on November 20, 2020, and continue through January 1, 2021, with extensions possible. These new mandatory guidelines for individuals and businesses are arguably some of the most restrictive in the nation, harkening back to the stay at home order from the spring. Upon release of the new restrictions, Philadelphia Health Commissioner Dr. Tom Farley aptly stated, “We may be tired of COVID, but COVID’s not tired of us.”

The new restrictions affect businesses, events and gatherings, and other activities, with an aim to “help flatten the epidemic curve, prevent hospitals from becoming overwhelmed, and reduce the number of COVID-19 deaths.”

Under the new restrictions, the following businesses and activities are not allowed:

• High schools and colleges must move to online instruction only, with the exception of clinical instruction for students in health sciences. 
• Indoor dining at restaurants and other food service businesses. (Takeout, delivery and outdoor dining may continue. Additional restrictions on outdoor dining are detailed below.) 
• Theaters, including movie theaters and other performance spaces. 
• Bowling alleys, arcades and game spaces.
• Museums.
• Libraries. (Those serving as access centers may continue to operate. Curbside dropoff and pickup services for patrons are allowed.)
• Casinos.
• Recreational activities and sports for youth, community groups and schools. 
• Gyms and indoor exercise classes. (Exercise groups and classes may continue outdoors.)
• Senior day services (senior centers and adult day care centers) remain closed.

Changes to events and gatherings include:

• Restaurants offering outdoor dining must reduce table sizes to four people. Guidance will make it clear that groups dining outdoors should be household members only, because mixing different households promotes communitywide spread.
• Retail stores and indoor malls may continue to operate, but with a maximum density of five people per 1,000 square feet. The City will require these stores to enforce mask use and distancing of customers and staff.
• Offices are permitted to have only employees that cannot work remotely. [Note: This requirement is consistent with Pennsylvania’s current statewide standard pursuant to Governor Wolf’s July 15, 2020, targeted mitigation order.]
• Barbershops, beauty salons and similar personal services may continue to operate, but all staff and customers must wear masks at all times. These businesses cannot work on the face or otherwise perform services that require that masks be removed.
• College sports may continue if their plan is specifically approved by the Department of Public Health and no spectators are present. 
• Zoos may operate only their outdoor areas. 
• Parks, trails, playgrounds and athletic fields will remain open for individual use only. (No group sports.) 

Certain businesses and activities can continue to function under current guidance from the Department of Public Health, such as grocery stores, manufacturing, healthcare services and home-based support services, among others. Philadelphia released updated business guidelines for different occupations, including manufacturing, office workers and retail, as well as industries such as healthcare, transportation, entertainment/travel, restaurants and education.

Impact on the Public

These latest orders have far reaching impact and will clearly alter family plans and other activities for the upcoming holidays as the Commonwealth and Philadelphia continue to implement measures as part of the ongoing COVID-19 mitigation strategy. It will be important for those in the Commonwealth as well as in Philadelphia to stay abreast of any developments or updates to the COVID-19 orders and guidance, particularly as they relate to various mitigation measures. Given the current demands on available COVID-19 testing and the dramatic increase in the number of reported cases in the Commonwealth, we should expect to see continued focus on mitigation measures such as mask-wearing, social distancing and travel restrictions.

What This Means for Employers

In light of the new travel order, Pennsylvania employers should require employees to report all out-of-state travel and require those employees who report into a physical workplace to seek approval in advance for out-of-state personal and work travel. Pennsylvania employers must recognize that for those employees who travel outside of the Commonwealth, they will be subject to a 14-day quarantine and will not be permitted in the physical worksite during the quarantine period, unless and until the employee receives a negative test result.

As a result, for those employees who are unable to work remotely, an employee’s quarantine due to this new travel order will trigger the applicability of leave under the Families First Coronavirus Response Act (FFCRA) to the extent an employer is covered by the FFCRA and an employee has FFCRA leave available. In addition, an employer must consider the extent to which it wishes to make any employer-provided PTO available to an employee who must quarantine upon return from recreational/personal travel, or whether it will amend its policies and communicate to employees that PTO is not available for such purposes and that employees face the consequence of unpaid leave upon return from recreational/personal travel where they are unable to work remotely/telework. Of course, all leave decisions are subject to applicable wage-and-hour laws and any local paid sick leave benefits that may cover such absence.

Philadelphia’s latest restrictions vary by industry, and businesses that have to close completely will obviously be most affected. Philadelphia employers in all business sectors should review their respective guidelines. By way of example, with respect to the guidelines issued by the Department of Health for office-based employers, these remain largely consistent. Pursuant to the new Philadelphia guidelines, office-based businesses must still operate remotely where feasible and provide masks to all employees working in-person. Employees and visitors are required to wear masks while on site except only as necessary for the employee to eat or drink during break times and when seated at least 6 feet from others or when seated alone in a private office or in a cubicle whose sides extend above the head of the employee. Office-based employers must also install protective barriers to separate employees in cubicles, screen employees for symptoms of COVID-19 before every shift, and maintain social distancing.

With respect to masks, Pennsylvania employers should immediately update their mask policies and protocols to ensure compliance with the new order. Notably, Pennsylvania’s new order rescinds and supersedes all of the prior July 15, 2020, Order Requiring Universal Face Coverings issued by the Secretary of the Pennsylvania Department of Health. Pennsylvania employers should be particularly cognizant of the updated requirement to wear masks indoors, regardless of whether employees are able to be socially distant, except under the specifically defined exceptions set forth in the Pennsylvania Department of Health Order. Notably, Philadelphia’s guidance with respect to the circumstances under which an employee may remove a mask in the office appears to be more lenient than the restrictions imposed by the Pennsylvania Department of Health and, therefore, Philadelphia employers must review both the Pennsylvania Department of Health Order and Philadelphia guidance as well as other business orders and guidance to ensure appropriate mitigation steps are being implemented.

About Duane Morris

Duane Morris has created a COVID-19 Strategy Team to help employers plan, respond to and address issues evolving during the pandemic. Prior COVID-19 Alerts are available on the team’s webpage.

For More Information

If you have any questions about this Alert, please contact Sharon L. Caffrey, Linda B. Hollinshead, Steven J. Brody, 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.

Disclaimer: This Alert has been prepared and published for informational purposes only and is not offered, nor should be construed, as legal advice. For more information, please see the firm's full disclaimer.