Like many U.S. states, Pennsylvania has experienced a sharp rise in COVID-19 cases in recent weeks. On November 17, 2020, the Pennsylvania Department of Health took aggressive steps targeted at mitigating spread of the virus within the Commonwealth by issuing new orders that impose stricter face mask requirements and introduce new requirements for testing and quarantine following out-of-state travel. For more information on the newly implemented travel requirements and how employers may be impacted, see Part II of this article, available here.
Updated masks requirements
Under the Updated Order of the Secretary of the Pennsylvania Department of Health Requiring Universal Face Coverings, which is effective November 18, 2020, face coverings are mandatory for all individuals aged two and over in the following circumstances:
- When indoors or in an enclosed space where other individuals who are not members of one’s own household are present, regardless of the amount of physical distance between individuals.
- When outdoors where other individuals who are not members of one’s own household are present and sustained physical distance of at least six feet is not possible.
- When participating in an indoor or outdoor event, gathering, or group setting where individuals who are not members of one’s own household are present.
- When participating in indoor physical activity in a gym, fitness center, or group fitness classes, where other individuals who are not members of one’s own household are present in the same space, regardless of the amount of physical distance between individuals.
- When waiting in a public area for, riding on, driving, or operating public transportation or paratransit or while in a taxi, regardless of the amount of physical distance between individuals.
- When obtaining services for themselves or another person or a pet from the health care sector in settings including, but not limited to, a hospital, pharmacy, medical clinic, laboratory, physician or dental office, veterinary clinic, or blood bank.
- When working in any space where food is prepared, packaged for sale, or prepared for distribution to others.
- When present in “[c]ertain facilities — including hospitals, shelters, long-term care facilities, residential treatment facilities, and correctional facilities” that require visitors and residents, patients, or inmates to wear face coverings even when in a living unit.
The order provides for limited exceptions to these requirements, such as when wearing a face covering would: (1) create an unsafe condition in which to operate machinery; (2) cause or exacerbate a medical condition; (3) allow for the confirmation of an individual’s identity; (4) allow the individual to obtain services that require the temporary removal of one’s mask, such as when visiting the dentist; (5) when working alone and isolated from interaction with other people with little or no expectation of in-person interaction; or (6) if an individual is communicating or trying to communicate with someone who is hearing impaired or has another disability, where the ability to see the mouth is essential to communication.
Under the order, businesses and schools must take reasonable steps to enforce the new face covering requirements. Although businesses have been required to enforce face covering requirements for several months now, what once was permissible may no longer be permissible. As such, businesses should revisit their existing policies and practices to ensure compliance with the expanded requirements under this updated face covering order.
The order also requires businesses and schools to post “prominent signs that are visible to all people… stating that face coverings are required by the order of the Secretary of Health.” This, too, is an action that Pennsylvania employers likely have taken previously in some form. However, it is unclear whether this requirement under the new order obligates businesses to issue new signage if their existing signage promoting face covering usage does not specifically reference “the order of the Secretary of Health.” Pennsylvania businesses will benefit from clearer guidance from the Department of Health and/or, perhaps all the more beneficial, a model sign or poster published by the Department of Health that businesses and schools can use to satisfy this requirement.
The updated order also requires businesses and schools to “[p]rovide reasonable accommodation to people, including their employees, teachers, students, customers, and visitors, who state they have a medical condition, mental health condition or disability that makes it unreasonable for the person to maintain a face covering.” The order expressly provides that such reasonable accommodations may include alternatives to wearing a face covering, such as the use of a face shield. Other accommodations may include curbside, pick-up, delivery, or other services that do not require the restricted individual from entering the business. Addressing one question that has persisted among Pennsylvania employers over the past several months, the order expressly permits businesses to decline service to individuals who are not wearing a face covering, including for claimed medical reasons, but only after attempting to provide a reasonable accommodation.
According to the updated order, businesses and schools must “[m]itigate or eliminate employee, teacher, student, visitor, and customer exposure to people who cannot wear or refuse to wear a face covering.” This requirement will undoubtedly raise material questions for Pennsylvania business for which the Department of Health has thus far provided no direct guidance. For example, how can Pennsylvania businesses truly be expected to eliminate such exposure? Are businesses now expected to dedicate physical space to those individuals who cannot wear, or even simply refuse to wear, a face covering? Such questions are made all the more challenging by the potential conflict created under the order itself – namely, the express prohibition under the order that makes clear businesses may not “[r]estrain, assault, use force, or physically remove employees, teachers, students, customers or other individuals who refuse to comply with this order when it would not otherwise be legal to do so.” Pennsylvania businesses will certainly benefit from clearer guidance from the Department of Health with regard to what actions are permitted and/or expected in order to comply with this requirement.
Pennsylvania businesses 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.