United States: Pennsylvania Issues Clarifying Guidance For Counties Moving To Green Phase

As previously discussed, 18 counties will be moving to the "Green" phase of the Commonwealth's phased reopening plan this coming Friday, May 29, 2020.  Fulfilling assurances from earlier this week to businesses and individuals in these counties, the Wolf administration announced that Governor Wolf and Health Secretary Dr. Levine issued executive orders that clarify the reopening process for "Green" phase counties and the Administration also issued guidance regarding outdoor dining in "Yellow" phase counties, dining in "Green" phase counties, and professional sports in "Yellow" phase counties.

Green Phase Order

The amended executive order provides additional provisions for counties entering the "Green" phase:

• The order includes provisions for businesses that were permitted to conduct in-person operations in the yellow phase, those permitted to operate with some restrictions on in-person operations and those that were not permitted any in-person operations under the yellow phase.  Specifically, the order provides guidance on occupancy limits and health and safety orders that business must adhere to under the green phase, including:
  • Businesses that were previously closed must fully comply with previously-issued Business Safety Order (discussed here) and Building Safety Order (available here) and all existing and future applicable guidance issued by the Wolf Administration and the Centers for Disease Control and Prevention (CDC).
  • Most businesses serving the public can operate at up to 75% of the relevant facility's maximum capacity, though the order noted that such businesses must still enforce social distancing requirements, which may limit occupancy below the 75% maximum capacity.
  • Certain businesses that were previously not permitted to reopen under the Governor's May 7 amended order, such as indoor recreation (g., bowling, arcades, and pool halls) indoor health and wellness facilities and personal care services (e.g., gyms, spas, hair salons, nail salons and massage therapy providers), and all entertainment (e.g., casinos, theaters, museums, concerts, zoos, sports clubs, carnivals, and playgrounds), can operate at up to 50% of the relevant facility's maximum capacity, though the order noted that such businesses must still enforce social distancing requirements, which may limit occupancy below the 50% maximum capacity.
• Several industries or institutions are specifically highlighted in the order and their respective new guidelines include:
  • Personal care services, including hair salons and barber shops must operate by appointment only; appointments or reservations are also strongly encouraged for gyms or spas.
  • Any gathering for a planned or spontaneous event of greater than 250 individuals is prohibited. This includes, but is not limited to, a concert, festival, fair, conference, sporting event, movie showing, or theater performance.
  • Churches, synagogues, temples, mosques and other places of congregate worship are specifically excluded from the limitations established by the order. These institutions are strongly encouraged to enforce social distancing and other mitigation measures such as masking at their gatherings.
  • Visitation to prisons and hospitals may resume subject to the discretion of the facility. Visitors who interact with residents and patients must be diligent regarding hygiene. Given the critical importance of limiting COVID-19 exposure in nursing homes, nursing home visitation restrictions will initially remain in place.

Dining Guidance

The Wolf Administration announced that it worked closely with the Pennsylvania Restaurant and Lodging Association to develop guidance on dining in both the "Yellow" and "Green" phases.  Restaurants and retail food service businesses located in "Yellow" phase counties will be permitted to add dine-in service in outdoor seating areas as of June 5, so long as they strictly adhere to the requirements of the guidance, including maximum occupancy limits, requirements for customers to sit at a table, and indoor areas must be closed to customers aside from through-traffic.  Moreover, the following remains prohibited: (1) self-service food or drink options, such as buffets, salad bars, condiments, and drink stations; (2) condiments on tables; these must be dispensed by employees upon the request of a customer; (3) reusable menus; and (4) Refilling food and beverage containers or allowing implements brought in by customers.

Restaurants and retail food service businesses located in "Green" phase counties may provide take-out and delivery sales, as well as dine-in service in both indoor and outdoor seating areas, so long as they strictly adhere to the maximum occupancy limits and other requirements of the guidance.  The administration emphasized that no business is required to conduct in-person operations and should only do so if it can satisfy the relevant guidance.  

Professional Sports Guidance

The Wolf Administration also provided guidance for the reopening of professional sports within the Commonwealth.  Professional sports teams (as defined by the guidance) are permitted to practice or play in counties that have transitioned to either the "Yellow" or "Green" phases of reopening if: (1) the team practices or plays without on-site or venue spectators; and (2) the team (or league on behalf of the team) has developed a COVID-19 safety plan.  Such a safety plan must be approved by the Pennsylvania Department of Health and include, among other requirements, testing or screening and monitoring of all on-venue players and personnel.

Seyfarth continues to monitor the Wolf Administration's business-related orders in response to COVID-19 and will provide further updates as available.