Pennsylvania Issues New Executive Order Mandating Additional COVID-19 Disease Control Measures

On April 15, 2020, the Secretary of the Pennsylvania Department of Health issued an order aiming to blunt the continued and expansive spread of COVID-19 throughout Pennsylvania (“Order”). The Order, which took effect on April 19, 2020, requires additional disease control measures to further protect workers and customers of any life-sustaining business (“Business”) that has remained open during the COVID-19 disaster emergency. The original list of Businesses can be found here, and includes companies such as healthcare service providers; restaurants offering carry-out, delivery, or drive-through services; food, medical equipment, and chemical manufacturers; and utility and telecommunication companies, among others.

The Order requires any such Business, other than a healthcare provider, to implement certain social distancing, mitigation, and cleaning protocols. These measures are in addition to those included in Pennsylvania’s April 6, 2020 building safety measures executive order, which requires covered businesses to clean and disinfect high-touch areas in accordance with CDC guidelines in spaces accessible to customers, tenants, or other individuals, and maintain pre-existing cleaning protocols established in the facility for all other areas of the building, ensure the facility has a sufficient number of employees to perform the required cleaning protocols effectively and in a manner ensuring the safety of occupants and workers, and make sure that the facility has a sufficient number of security employees to control access, maintain order, and enforce social distancing of at least six feet.

Required Procedures for Employers Allowed to Maintain In-Person Operations

Businesses that are allowed to maintain in-person operations, with the exception of healthcare providers, must implement the below protocols. Examples of these Businesses include, but are not limited to, facilities used for manufacturing, as well as crop and animal production. The Order also includes notice provisions requiring a Business to advise its employees (either by oral or written communication) of the below protocols, in their native or preferred language, as well as in English, or by any method that allows the worker to understand the protocols.

• Routinely clean and disinfect high-touch areas pursuant to the CDC guidelines in areas that are accessible to customers, tenants, or other people. This requirement is in addition to maintaining pre-existing cleaning protocols created by the Business for all other areas of the building;
• Stagger work start and stop times for workers to prevent gatherings of large groups from entering or leaving the premises at the same time;
• Provide sufficient space for employees to take rest and meal breaks while keeping a social distance of six feet. Arrange seating to have workers face forward, rather than across from each other, while taking rest and meal breaks;
• Stagger rest times to reduce the number of employees on break at any given time so that six feet social distancing protocols may be followed;
• Limit the number of employees in common areas (such as locker or break rooms, dining facilities, and training or conference rooms) at any given time to the number of individuals that can successfully maintain a social distance of six feet;
• Conduct virtual meetings and trainings. If a meeting must be held in person, limit the meeting to the fewest number of employees possible, and to no more than 10 employees at one time, while maintaining a social distance of six feet;
• Provide employees access to regular handwashing with soap, hand sanitizer, and disinfectant wipes and ensure that common areas are regularly cleaned, including between shifts;
• Provide employees with masks to wear while at work, and require that masks be worn while working on site. Employees may remove masks in accordance with CDC guidelines to eat and drink during rest and meal periods;
• Ensure the Business has a sufficient number of employees to comply with the Order’s measures efficiently and in a manner that ensures the safety of the public and workers;
• Ensure the Business has a sufficient number of employees to control access, maintain order, and enforce social distancing of at least six feet; and
• Prohibit non-essential visitors from entering the Business’ premises.

Required Procedures for Employers that Serve the Public

Businesses that serve the public within a building or defined area, with the exception of healthcare providers, must also implement the below procedures. Examples of these Businesses include, but are not limited to, general merchandise and food and beverage stores.

• Where feasible, conduct business with the public by appointment only. To the extent this is not feasible, limit occupancy to no greater than 50% of the number stated on the applicable certificate of occupancy. In addition, a Business must ensure customers maintain a social distance of six feet at check-out and counter lines and place signs throughout the Business requiring social distancing for both customers and workers;
• Based on the building size and number of workers, adjust hours of operation so that the Business has enough time to clean and/or restock;
• Install shields, or other barriers, at registers and check-out areas to physically separate cashiers and customers; take similar measures to ensure social distancing of customers and check-out personnel, or close lines to keep a social distance of six feet between lines;
• Encourage use of online ordering by providing delivery or pick-up options;
• Designate a specific time for high-risk and elderly people to use the Business at least once every week if there is a continuing in-person customer-facing component;
• Require all customers to wear masks while on the premises, and deny entry to people not wearing masks, unless the Business is providing medication, food supplies, or food, in which case the Business must provide alternative methods for pick-up or delivery of goods. People who cannot wear a mask due to a medical condition (including children under the age of two per CDC guidance) can enter the premises and are not required to provide documentation of such medical condition;
• Businesses with multiple check-out lines may only use every other register, or fewer. In addition, after every hour, customers and workers must be rotated to previously closed registers. Further, a Business must then clean previously open registers and the surrounding areas, including credit card machines, following each rotation;
• Schedule handwashing breaks for employees at least every hour; and
• Where a Business provides carts or handbaskets for customer use, it must assign an employee to wipe down each cart and handbasket before they become available to each customer entering the premises.

Procedures for COVID-19 Related Cases

All Businesses, with the exception of healthcare providers, must implement the following procedures if it discovers the Business has been exposed to a person who is a probable or confirmed case of COVID-19:

• Close off areas visited by the person who is the probable or confirmed case of COVID-19. Open outside doors and windows and use ventilation fans to increase circulation in the area. Wait a minimum of 24 hours, or as long as practical, before beginning cleaning and disinfection. The cleaning staff should clean and disinfect areas used by the ill person, such as offices, bathrooms, common areas, shared electronic equipment, and ATM machines, paying special attention to frequently touched areas;
• Identify employees who were within “about six feet” of the individual who became ill, and who had approximately ten minutes of sustained contact with the individual, during the period beginning 48 hours before symptom onset to the time at which the individual isolated;
  • If the employee remains asymptomatic, he or she should adhere to the practices set forth by the CDC’s April 8, 2020 COVID-19 Interim Guidance;
  • If the employee becomes sick during the workday, he or she should be sent home immediately. Surfaces in the employee’s workplace should be cleaned and disinfected. The Business should compile information on other employees who had contact with the employee who became ill, both during the time the employee had symptoms and 48 hours prior to the onset of symptoms. Others at the workplace who were within six feet of contact of the employee during this time would be considered exposed;
  • Promptly notify employees who were close contacts of any known exposure to COVID-19 at the Business’ premises, consistent with applicable confidentiality laws; and
  • Ensure the Business has a sufficient number of workers to perform the above protocols effectively and timely.
• Implement temperature screening before a worker enters the Business, prior to the start of each shift, or in the absence of shifts, before the employees start work, and send employees who have an elevated temperature or fever of 100.4 degrees Fahrenheit or higher, home;
• Employees who have symptoms, such as fever, cough, or shortness of breath, should notify their supervisor and stay home; and
• Sick employees should follow CDC-recommended steps. Employees should not return to work until the CDC criteria to discontinue home isolation are met, in consultation with healthcare providers and state and local health departments. The Order also encourages employers to implement liberal paid time off for workers who do not return to work as set forth above.

Penalties for Non-Compliance

Failure to comply with the Order’s requirements will result in enforcement action that could include citations, fines, or license suspensions.

Next Steps

Businesses should review the Order’s requirements to ensure compliance while continuing operations. In addition, Businesses should ensure that employees and managers are properly trained on compliance requirements. Finally, Businesses should confirm that their PTO policies comply with the many new or expanded COVID-19 related federal or state leave laws. If you have any questions, please contact an attorney in the Gibbons Employment & Labor Law Department.