This article supplements our earlier article about the April 15, 2020 worker safety order issued by the Pennsylvania Department of Health (DOH).  The order requires essential businesses in operation in Pennsylvania to implement new workplace requirements, including a mandate for all workers to wear masks.  DOH accompanied the order with a guidance, which was available shortly after issuance of the order.  Unlike the order, the recommendations in the guidance are not mandatory, and are in some ways broader than the requirements of the order.  The order became effective immediately upon its issuance, with enforcement scheduled to begin at 8:00 p.m. on April 19, 2020.

In the days after issuance of the order, various advocacy groups raised a variety of questions about the new requirements.  DOH has now responded with a publication it calls COVID-19 Workplace Safety Questions.  This document is in the nature of Frequently Asked Questions.  The information provided in the more than 50 FAQs is not organized into categories.  This article organizes some of the key points into four categories: masks; definition of “probable” case; temperature screening; and enforcement.

Masks

  • Scarves, bandanas, a disposable face shield, and other face coverings will suffice in place of a mask.
  • For employers having difficulty obtaining masks, the Department of Community and Economic Development has created a ‘Business-2-Business’ Directory, which identifies potential vendors of masks and other PPE.
  • An employee does not need to wear a mask if it impedes their vision, if they have a medical condition, or if wearing a mask would create an unsafe condition in which to operate equipment or execute a task.
  • Bank employees should wear masks at all times. Customers can be asked to remove their masks to reveal their face and then recover their face after the bank employee has identified the customer.  This should take place within a minimum distance of six feet.
  • DOH does not dictate to employers how they should manage their workforce if employees refuse to comply with the Order. Enforcement within the workplace and determination of corrective measures is up to the employer.
  • As to workers commuting to work, if the person is driving alone throughout the trip, no mask is needed in the vehicle. But, if the worker should need to travel through a toll-booth or other drive-thru requiring person-to-person interaction, they should be wearing a mask.
  • Employees isolated in their personal office space, when unshared with any other colleagues, do not need to wear a mask. However, when the employee leaves their individual office or has invited a colleague into their office, they must wear a mask.

Definition of “probable” case of COVID-19 (triggering response protocols)

  • A person is considered to have a probable case of COVID-19 if a person has appropriate symptoms (i.e., fever, cough, shortness of breath) and exposure to a high-risk situation, or if the person has a positive antibody test and either symptoms or high-risk exposure.

Temperature screening

  • Temperature screening only applies after an employer is aware of a probable or confirmed exposure.
  • When there has been a probable or confirmed exposure, all employees at that location must be temperature screened moving forward, not just those employees who were exposed to the probable/confirmed person.
  • Employers are not required to have a medical professional administer the temperature screenings.
  • Temperature checks cannot be done through employee self-screening (i.e., employees cannot be told to take their own temperature at home).
  • After a probable or confirmed exposure to COVID-19, there are no acceptable alternative procedures for monitoring temperatures other than an employer-administered program on-site at the beginning of each workday.
  • Temperature screenings should be conducted as to an entire facility/campus, and not just at specific buildings or sections of buildings.
  • The Order does not specify an end date for temperature screening.  According to the FAQs, temperature checks should be conducted for at least 14 days after exposure.  In areas of the Commonwealth with high positive COVID-19 case numbers, DOH recommends routine temperature checks.
  • Temperature screening is not triggered based on confirmed cases that became known before April 15, 2020.
  • For employers having difficulty obtaining thermometers, the Department of Community and Economic Development has created a ‘Business-2-Business’ Directory, which identifies potential vendors of thermometers and other PPE.

Enforcement

  • Employee complaints will be taken online only; no hotline complaints.  DOH will create a webform for employees to report violations.
  • There is no waiver process and there are no exceptions (except healthcare providers).
  • There are no considerations being made to excuse compliance, even if employers can show they are aggressively working toward compliance.  DOH expects full compliance and enforcement begins at 8:00 p.m. tonight.

Conclusion

Pennsylvania essential businesses with current in-person operations are working rapidly in an already stressful time to comply with the new DOH requirements.  Our Pennsylvania labor and employment team is closely monitoring developments relating to this order and any similar government action taken to address the ongoing COVID-19 pandemic.  To that end, Reed Smith has prepared a Coronavirus (COVID-19) Resource Center, which is updated frequently as federal, state, and local requirements change.  We are prepared to assist you and your business with any questions or concerns that might arise.