On July 15, 2020, Governor Wolf and the Pennsylvania Department of Health issued orders “directing mitigation measures” in response to a reported rise in COVID-19 cases in Pennsylvania. Both orders included the following mandate requiring telework: “Unless not possible, all business are required to conduct their operations in whole or in part remotely through individual teleworking of their employees[.]”
The plain text of these orders are creating considerable confusion with Pennsylvania employers seeking certainty about whether they may continue with their recent plans of returning remote workers to the workplace. In particular, the phrases “[u]nless not possible” and “in whole or in part” are central to the confusion. Does this mean that Pennsylvania businesses must return to a remote work environment to the full extent feasible, as the State had more clearly directed in its “Yellow Phase” guidance under the State’s reopening plans of May 27, 2020? Or, given that all Pennsylvania counties are currently in the “Green Phase,” does it mean Pennsylvania businesses must simply provide teleworking “in part” by making such an option available to some of their workforce for whom teleworking is feasible? Granted, the July 15, 2020 orders provide expressly that any conflicting provisions of the May 27, 2020 reopening plans are superseded. That provision of the July 15, 2020 orders, however, does not address, let alone resolve, the fundamental questions of: (i) whether any such conflict even exists with regard to the ambiguous teleworking requirement, and (ii) if such a conflict exists, what is its scope?
To be certain, Pennsylvania employers should prepare to operate with exceptional flexibility over the next several months and, if not already established, should consider creating a teleworking plan, as these latest developments make clear that any statewide push to return to in-person operations may rapidly roll back with little notice, or clarity, from the Commonwealth’s leadership.
At this point, Pennsylvania employers crave additional guidance with respect to the telework mandate contained in the July 15, 2020 orders. Until such guidance is provided, employers should consider seeking the assistance of legal counsel before making the challenging decision of either continuing partial in-person operations where remote work is possible versus rolling back their reopening plans and returning to the virtual workplace from which they might have recently transitioned.