On May 4, 2020, Pennsylvania Governor Tom Wolf issued a document titled “Guidance for Businesses Permitted to Operate During the COVID-19 Disaster Emergency” (the Business Guidance or the Guidance). The Business Guidance contains the latest requirements applicable to businesses during Pennsylvania’s Red, Yellow, Green phased reopening approach. These new requirements are directed at businesses already conducting in-person operations during the Red phase, and those businesses preparing to open in-person operations in counties designated in the Yellow phase. The governor’s Process to Reopen Pennsylvania has more information regarding Pennsylvania’s phased reopening approach. Briefly, in counties designated as Red phase, only businesses designated as life-sustaining or that otherwise obtained exemptions are permitted to lawfully operate. In counties designated as Yellow phase, some identified additional businesses may lawfully operate subject to certain requirements. A future Green phase would allow for all in-person business to reopen without special state requirements, subject to general adherence to guidelines in place at that time provided by health authorities such as the federal Centers for Disease Control and Prevention and the Pennsylvania Department of Health (DOH).

The Business Guidance sets forth precautions and protocols that businesses currently permitted to conduct in-person operations must implement. The Business Guidance stems from and incorporates six of the orders previously issued by Governor Wolf and DOH, including, but not limited to, the DOH April 5, 2020, building safety order and the DOH April 15, 2020, worker safety order.

It also emphasizes that businesses that have been operating remotely through employee telework must continue to have their employees work remotely until the county in which the business is operating is designated in the Green phase, thereby lifting the stay-at-home and business closure orders.

Businesses subject to the Guidance

Businesses that fall under the umbrella of the Guidance are the following:

  • Businesses authorized to conduct in-person operations under the governor’s and secretary’s non-life-sustaining business closures orders (as amended).
  • Businesses operating in-person under an exemption from those orders.
  • Businesses permitted to operate in-person pursuant to a subsequent order or amendment, including the construction industry, vehicle dealerships, and the real estate industry.
  • Businesses in counties that have been designated as in the Yellow phase, except those categories of businesses specifically excluded in the governor’s plan to reopen Pennsylvania.

Policy set forth in the Guidance

Under the Guidance, businesses that must maintain in-person operations are required to make their employees and customers aware of the business’ “efforts and commitment” to protecting their health and safety. These efforts must include the steps set forth in the governor’s April 15 worker safety order, which we discussed in our previous posts. This includes employees wearing masks, cleaning and disinfecting the work environment, establishing protocols to address when a business is exposed to a probable or confirmed case of COVID-19, and implementing workplace safety measures, such as staggering work start and stop times, limiting the number of people in common areas, and conducting virtual meetings. Again, this emphasizes the importance of having specific protocols in place to address worker safety with written protocols and notice to employees recommended.

The Business Guidance also imposes a new obligation on businesses to post on their premises a signed copy of the DOH’s “COVID-19 Safety Procedures for Businesses” flyer. Businesses must post the signed flyer in an employee common space and near the business’ public entrance(s), where applicable. The flyer must be signed by the business’ corporate officer, site manager, or equivalent. The flyer must also have a space for the business to identify a pandemic safety officer, which is the person in charge of the COVID-19 safety procedures for the business. The Business Guidance encourages that businesses send the guidance or the flyer electronically to employees as well.

According to the Business Guidance, businesses that inherently require close contact with customers, and are therefore presumed to be unable to practice social distancing, are not permitted to conduct in-person operations until the county they operate in transitions to the Green phase, when the building and worker safety orders are lifted. While it is not clear which businesses might fall into this category, businesses considering reopening should consult with the non-life-sustaining business closures orders and the current phase level of the county in which they operate.

Again, there is additional guidance applicable to businesses that serve the public inside a building or other defined area, which is similar to the earlier worker safety order. These additional precautions include, but are not limited to, conducting business by appointment only, whenever possible, and if not possible, allowing no more than 50 percent of total building occupancy, requiring customers to wear masks, and providing specific hours for high-risk groups to shop. It is not clear what a retailer will have to demonstrate in order to show that appointment-only service is not feasible.

Employee and customer reports

The Business Guidance directs employees and customers who suspect a possible health and safety violation in the workplace related to COVID-19 to: (1) file a complaint with a local health department or a law enforcement agency; (2) submit a web form to the Pennsylvania Department of Health; or (3) review OSHA guidance and, if appropriate, file a complaint with OSHA.

What does this mean for businesses?

Businesses already conducting in-person operations may already have implemented many of the measures stated in the Business Guidance, except for the flyer posting requirement and the need to identify a pandemic safety officer. On the other hand, businesses just reopening after being shut down for several weeks will have much to catch up on and should carefully review all of the orders issued by the governor and the DOH.

Businesses should continue to allow remote or telework as the primary option when possible. When businesses reopen with in-person operations, employees should continue to practice social distancing, including video conferences instead of in-person meetings, if possible. Businesses can expect this to be the “new normal” for the foreseeable future. Additionally, businesses should note that the United States Supreme Court denied a group of Pennsylvania business owners’ petition to stay enforcement of Governor Wolf’s shutdown order.  The case is Friends of Danny DeVito et al. v. Tom Wolf, Governor of Pennsylvania et al., Case No. 19-1265 (U.S.).