United States: Pennsylvania Employers May Need To Revise Policies And Practices Within The Workplace In Response To New Mitigation Order By Governor Wolf

On November 23, 2020, Governor Tom Wolf issued the Order of the Governor of the Commonwealth of Pennsylvania for Mitigation, Enforcement and Immunity Protections, which establishes various mitigation measures that Pennsylvania businesses must implement effective November 27, 2020. Many of these measures are already familiar to Pennsylvania businesses that have been implementing the mitigation measures prescribed by the April 15 worker and business safety order, which we discussed in a previous article. Although this Order is, to some extent, a reiteration of many requirements in the April 15 order, it also includes several new and updated requirements that may require Pennsylvania businesses to update current policies and practices. This article highlights some of the most significant new requirements under the new Order.

Mandatory telework

Under the Order, Pennsylvania businesses are required to conduct their operations remotely through telework "unless impossible." Where telework is impossible, in-person operation of the business may continue subject to the other workplace safety requirements stated in the Order, including, for example, enhanced cleaning protocols, social distancing, mask wearing, capacity limits, and workforce scheduling.

Neither the Order nor the updated FAQs for businesses offer guidance as to what would render telework "impossible." As addressed in our prior articles here and here, a July 15 order had established mandatory telework "unless not possible," which was clarified in later guidance to mean to the extent possible. It is unclear whether the wording change in the November 23 Order is intended to convey a stricter standard and, if so, what that standard is and how it applies to those positions for which telework is possible for certain job duties but impossible for others. Throughout the pandemic, Pennsylvania employers have faced telework requirements established under shifting standards and the related challenges in balancing the interests of complying with those telework orders and the business needs of completing in-person operations. Unquestionably, Pennsylvania employers would benefit from clearer and consistent guidance.

Mandatory temperature screenings for employees

New in the November 23 Order is a requirement that temperature screenings of employees take place before an employee is permitted to enter the business prior to the start of every workday or shift. Employees with an elevated temperature of 100.4 degrees Fahrenheit or higher must be sent home.

Under prior orders, namely the April 15 worker and business safety order, temperature screenings were required only after an employer's workplace had become exposed to a confirmed or probable COVID-19 case. That has changed under this November 23 Order, as it appears that daily employee temperature screenings are now required of all employees in all cases, even if there is no exposure to a confirmed or probable COVID-19 case.

Again, the FAQs provide sparse guidance in terms of an employer's implementation of this requirement, as they have not been updated to reflect that temperature screenings are now required regardless of whether there has been a known or suspected exposure. Neither the Order nor the FAQs address whether alternatives will be permitted in the event that a sufficient number of thermometers or other temperature-screening devices cannot be procured. For example, self-screening by the employee had been permissible under State guidance earlier this year. It is unclear if that guidance is still valid.

Employers must ensure that employees maintain proper social distancing while waiting to have temperatures screened by placing marks at six-foot distances where the temperature screen is conducted. Additionally, employers should be mindful of their obligations to the employees under applicable wage and hour laws during periods in which they are waiting for their temperature screenings.

Pennsylvania employers that have not already implemented daily temperature screenings should not overlook this expanded temperature screening requirement, as it places an immediate need for those employers to create or adjust policies and practices to ensure compliance.

No more "confirmed" or "probable" distinctions?

Also noticeably new to the November 23 Order is the omission of the designations of "confirmed" and "probable" cases that were included in prior orders, particularly the April 15 worker and business safety order.

As noted above, the April 15 order required Pennsylvania businesses to take special mitigation actions, including daily temperature screenings, enhanced cleaning, and contact tracing, in the event the workplace was exposed to a confirmed and probable case of COVID-19. The November 23 Order eliminates use of the terms "confirmed" and "probable" with regard to instances of exposure, and instead seemingly focuses on whether an individual is diagnosed with or tests positive for COVID-19.

Under the new Order, an employee who is a close contact (now defined as being within six feet for about 15 minutes, which also differs from the April 15 order) of a person who is diagnosed with or tests positive for COVID-19 may not continue to work and must quarantine. This is a particularly notable shift with regard to those employees who have not been diagnosed with or tested positive for COVID-19 but have been in close contact with someone who has. Under the definition of "probable" established by the State in prior guidance, such employees had to quarantine only if they showed symptoms. By contrast, under the November 23 Order any employee who has been in close contact with someone diagnosed with or tested positive for COVID-19, regardless of whether the employee is showing symptoms, must quarantine.

With reported positive COVID-19 cases statistics rising sharply in recent weeks, it is entirely plausible that an increasing percentage of the Pennsylvania workforce will come into close contact with a friend, family member, or other acquaintance who has been diagnosed or tested positive for COVID-19. Accordingly, Pennsylvania employers should heed this change as it may ultimately have a significant impact on their staffing and operations.

The omission of the "confirmed" and "probable" distinctions also reflect an apparent change in the November 23 Order with respect to the mandatory mitigation actions that Pennsylvania businesses must implement in exposure cases (described below). Under the November 23 Order, Pennsylvania businesses must undertake extensive cleaning of areas "visited by a person who is a case of COVID-19." Areas visited by the ill person must be closed off and outside doors and windows must be opened to increase air circulation in the area for a minimum period of 24 hours, or as long as is practical. Following that waiting period, cleaning and disinfection of any areas used by the ill person must be completed, with a focus on frequently touched areas. Contact tracing must also be completed by identifying employees and customers, to the extent possible, who were in close contact with a person with COVID-19 from the time period of 48 hours before symptom onset and promptly notify those who were close contacts of any known exposure at the business premises.

Under the April 15 order, such mandatory mitigation actions were required in any "confirmed" or "probable" case of COVID-19. By contrast, the November 23 order seemingly suggests that such mitigation actions are no longer needed in "probable" cases, but rather only in cases in which an individual is diagnosed with or tests positive for COVID-19. This, too, is an open question for which clarity would benefit Pennsylvania employers.

Other protocols regarding regular cleaning, face coverings and social distancing

The November 23 Order also requires all businesses maintaining in-person operations (other than health care providers) to comply with other workplace mitigation requirements including: routine cleaning of high-touch surfaces and common areas; providing employees with face coverings and requiring compliance with the recently announced face covering requirements while on business premises; enforcing social distancing requirements; implementing employee "traffic control" measures such as staggering shifts and work schedules, limiting persons and groups in common areas, and configuring seating arrangements in break rooms and conference rooms; prohibiting non-essential visitors; and notifying employees about the protocols being established by the employer pursuant to the November 23 Order. These requirements, by and large, mirror those established under the April 15, 2020 Order, which we outlined in a previous article.

Additional requirements for businesses that serve the public

The November 23 Order also sets forth certain mandates for businesses providing services to the public. These mandates, by and large, are consistent with those established under the April 15, 2020 Order, which we also outlined in a previous article.

Capacity limits, business restrictions, and mandatory closures

The November 23 Order sets forth the following capacity limitations:

• In-person retail businesses in the entertainment industry, gyms and fitness facilities, and personal care services (by appointment only) may operate at up to 50% of the maximum capacity stated on their certificate of occupancy.
• Bars may operate at 25% occupancy, and may only serve alcohol on premises for consumption when in the same transaction as a meal. All service must be at a table or booth and on-site consumption of alcohol must cease at 11:00 p.m.
• Restaurants may operate at 25% occupancy and may only serve alcohol for on-premises consumption when in the same transaction as a meal. All sale or dispensing of alcoholic beverages for on-site consumption must cease at 10:00 p.m. Restaurants may increase to 50% capacity if they enroll in and comply with the Open & Certified Pennsylvania program.
• All nightclubs are prohibited from conducting operations.
• All other in-person businesses serving the public within a building or defined area may operate at up to 75% of the maximum capacity stated on their certificate of occupancy.

In addition to these restrictions, venues hosting events or gatherings are required to restrict the size of such gatherings based on calculations set forth in the Order, but under no circumstances may there be gatherings of over 500 people indoors or 2,500 people outdoors. Although religious organizations are expressly exempted from these capacity restrictions, they are required to comply with masking requirements and strongly encouraged to enforce physical distancing and other mitigation measures.

Enforcement

In addition to enforcement mechanisms already available for any violation of orders issued by the Governor and the Department of Health, additional penalties are set forth in the November 23 Order for retail establishments and restaurants that fail to comply. The first instance of noncompliance will result in an initial warning letter, following which the business is required to engage in rigorous cleaning and implementation of other mitigation measures as necessary to comply with the Order. The second instance of noncompliance may result in a citation and/or fine, as well as a mandatory closure for a period of up to 24 hours. Finally, a subsequent violation of the Order will result in a mandatory closure for a period of at least 24 hours, additional fines and penalties, and referral for criminal prosecution.

As many Pennsylvania businesses have learned this year, a good-faith effort to comply with the Commonwealth's COVID-19 mitigation Orders requires an exercise of good business judgment filling in various aspects of Orders which are not detailed and for which limited or no guidance may be available. Pennsylvania businesses are working rapidly in an already stressful time to comply with new COVID-19 related Orders, and our Pennsylvania labor and employment team is closely monitoring developments relating to any 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.

Originally Published by Reed Smith USA, November 2020

This article is presented for informational purposes only and is not intended to constitute legal advice.