Employers Should Act Now in Response to New Order from the Pennsylvania Department of Health

On Wednesday, April 15, Pennsylvania Governor Tom Wolf, in conjunction with the state’s Department of Health, announced an Order requiring businesses to implement new safety measures in response to the coronavirus pandemic. The Order details a litany of new “social distancing, mitigation, and cleaning protocols” that businesses must observe with respect to both employees and customers. Effective immediately, the Order applies to “life-sustaining businesses” authorized to maintain operations during the crisis under a prior order issued in March, including grocery stores and pharmacies. The Governor has directed a number of state agencies to enforce the new requirements, including the Department of Labor & Industry, the Department of Health, and the Pennsylvania State Police.

Among the new obligations, employees will be required to wear masks at all times, except when eating or drinking, or when working alone in a private office.  An employee does not need to wear a mask if it “impedes their vision, if they have a medical condition, or would create an unsafe condition in which to operate equipment or execute a task.”  The Department has clarified that this means that an employee with anxiety such that  a mouth or nose covering could lead to panic attacks or other medical conditions is not required to wear a mask.  Also, employees driving to work alone do not need to wear a mask, however, they should don a mask if traveling though a toll booth or other drive thru.

Employers may approve masks obtained or made by employees in accordance with guidance on homemade masks found on the Department of Health’s website.  Scarves, bandanas, face shields or other face coverings will suffice in place of a mask.  Otherwise, employers must provide masks to employees who do not have their own.  This requirement applies to essential workers working outdoors and to banks and other financial institutions.

In addition, employees must be provided with ample space to maintain a social distance of six feet during meals and breaks, and the number of employees congregating in common areas must be limited in general. All employee meetings and training sessions should be conducted virtually, if possible. Necessary in-person meetings should be conducted with the fewest number of employees possible, and in-person meetings of more than 10 employees at once are prohibited. The Order also directs employers to implement staggered work shifts “when practicable” to prevent large groups of workers from entering or leaving work at the same time, and to require employees to wash their hands at least once every hour they are on-site.

There are a number of actions an employer must take upon discovering that its employees may have been exposed to a person infected by the COVID-19 virus, including closing off and ventilating the area where the exposure occurred for 24 hours, after which it must be thoroughly cleaned and disinfected. Furthermore, employers are obligated to conduct temperature screenings of all employees, on site, at the beginning of each workday, for at least 14 days after a potential exposure.  The PA Department of Health recommends that employers in those areas of the Commonwealth with high positive case numbers make on-site temperature checks a matter of routine.  A medical professional is not required to administer the temperature screenings.

Employers must identify and promptly notify employees who potentially were exposed, and employees who become sick must be sent home immediately.  In addition, employees with a temperature of 100.4 degrees or more must be sent home.  Exposed but asymptomatic employees should follow the practices set out by the CDC in its April 8, 2020 “Interim Guidance for Implementing Safety Practice for Critical Infrastructure Workers Who May Have Had Exposure to a Person with Suspected or Confirmed COVID-19.” The Order also directs employees who have symptoms to notify their employer and stay home.

With regard to the public-facing measures under the Order, businesses must prohibit all “non-essential visitors” from entering the premises. Otherwise, businesses must require customers to wear masks, unless the business provides essentials such as medical supplies or food. In that case, businesses must implement alternate methods, such as delivery or pick-up, for providing such essential products and services. The Order strongly encourages companies to conduct business by appointment only whenever feasible. If not, businesses must limit the number of customers on-site at any given time to 50% of the number stated on the company’s certificate of occupancy, and a social distance of 6 feet must be maintained throughout the premises, including at all customer check-out areas or counter lines. For those areas, businesses also are required to install shields or barriers to physically separate employees from customers. Other suggested measures include changes to business hours to allow for sufficient cleaning, as well as designated shopping hours for elderly customers or other customers with elevated risk due to pre-existing health conditions.

Businesses that have not already done so must move quickly to comply with the Order to avoid potential enforcement action by one of the state agencies authorized by the Governor to address violations and to mitigate the risk of exposure for employees and customers. Employers should identify the areas in which changes must be made and quickly develop plans and procedures to ensure compliance. Employers may wish to consult with legal counsel now to assess potential liability and develop solutions, particularly where specific circumstances make compliance extremely challenging.

-Rogers Stevens, Tracey Diamond and Susan Lessack