Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
Citing a resurgence of COVID-19 cases in Pennsylvania with significantly higher daily case counts than in the spring and rising hospitalizations, Commonwealth Secretary of Health Dr. Rachel Levine announced additional COVID-19 mitigation efforts on November 17, 2020. The new measures include mandatory travel restrictions, a broader face-covering mandate, guidance to colleges and universities for COVID-19 testing and mitigation steps, and directives to acute care hospitals to accelerate necessary elective procedures and engage in regional coordination to ensure adequate acute care is provided across the Commonwealth.
1. Travel Restrictions: Mandatory COVID-19 Test or 14-Day Quarantine to Enter Pennsylvania, Unless Passing Through or Traveling for Work, Medical Reasons, or as Part of Military Service
Dr. Levine has issued an Order imposing mandatory travel restrictions, citing guidance from the Centers for Disease Control and Prevention (CDC) and public health experts regarding the potential for spread of COVID-19 over the holiday season through large and small gatherings among persons who are not habitually together. The Order becomes effective on Friday, November 20, 2020 at 12:01 a.m. Unless an exemption applies, the Order requires individuals traveling to and from the Commonwealth from anywhere outside the Commonwealth to either (1) provide proof of a negative COVID-19 test collected within 72 hours before entering the Commonwealth, or (2) quarantine for 14 days.
The COVID-19 test must be a diagnostic COVID-19 test authorized by the Food and Drug Administration arranged at the traveler’s expense. Travelers who do not have their test results at the time of entry into the Commonwealth must remain at their travel destination without contact with others outside their traveling party until they receive their test results, except to receive testing or other necessary medical services. If a traveler receives a positive test result, the traveler must remain in isolation, separate from others who do not have COVID-19.
The Order provides exemptions for travel for the following reasons:
- Work: travel to and from the Commonwealth for work;
- Medical Reasons: travel to and from the Commonwealth for medical reasons including to provide comfort and support to a patient;
- Passing Through: transit through the Commonwealth to another destination only for so long as is necessary to complete the transit, make use of travel services (e.g., highway rest stop) or make necessary travel connections; and
- Military Personnel: travel by military personnel to the Commonwealth by order or directive of a state or federal military authority.
Additional exemptions may be issued in future guidance issued by the Department of Health, which has posted updated traveler FAQs on its COVID-19 Information for Travelers webpage.
These new mandatory travel restrictions replace the prior travel guidance that had recommended a 14-day quarantine upon return from travel to areas of community spread (34 states at last count), with exceptions for contiguous states due to regional interconnectedness.
With this new Order, Pennsylvania joins a number of other jurisdictions that have imposed strict interstate travel restrictions, including Alaska, Connecticut, District of Columbia, Hawaii, Chicago, Maine, Massachusetts, New Jersey, New Mexico, New York, Puerto Rico, Rhode Island, and Vermont. As a result, travelers will need to assess travel restrictions that may apply to their intermediate and final travel destinations, as well as to their return trip home. Employers will want to engage with employees in advance to consider whether planned personal travel may pose a risk to workplace safety, and the possibility that the employee may not be able to return to work as scheduled due to testing and quarantine rules that currently exist or that may be imposed without advanced notice. For work travel, employers may want to consider providing employees with a letter on Company letterhead stating that the employee is traveling for work purposes that provides contact information for questions that may arise.
2. Updated Universal Face Covering Mandate
Dr. Levine issued an updated Order Requiring Universal Face Coverings that requires individuals age two and older to wear face coverings when indoors or outdoors and in the presence of non-household members and in other circumstances, as follows:
- Indoors: when indoors (or in an enclosed space) and in the same space and in the presence of non-household members, irrespective of physical distance (the FAQs confirm that this applies one’s own household and to sporting activities);
- Outdoors: when outdoors with other non-household members and unable to maintain sustained physical distance, which is at least six feet away (including sporting activities);
- Events, Gatherings, Group Setting: when in the presence of non-household members at an indoor or outdoor event, gathering, or group setting, subject to the limitations in the Secretary of Health’s prior Order Directing Mitigation Measures, dated July 15, 2020, as amended (requiring attendees to maintain six-foot physical distancing and wear face coverings);
- Gym, Fitness Center or Group Fitness Class: when participating in indoor physical activity in the same space as and in the presence of non-household members in a gym, fitness center or group fitness class, irrespective of physical distance;
- Transportation: when waiting in a public area for, riding on, driving or operating public transportation or paratransit or while in a taxi, private car service or ride-sharing vehicle, irrespective of physical distance;
- Health Care / Veterinarian Settings: when obtaining services for oneself or another person or pet in any health care sector setting including, but not limited to, a hospital, pharmacy, medical clinic, laboratory, physician or dental office, veterinary clinic, or blood bank;
- Food Workers: when working in any space where food is prepared, packaged for sale, or prepared for distribution to others; and
- Care, Treatment and Correctional Facilities: certain facilities including hospitals, shelters, long-term care facilities, residential treatment facilities, and correctional facilities may require visitors and residents, patients, or inmates to wear face coverings even when in a living unit.
“Face covering” is defined as a factory-made or homemade covering that covers the nose and mouth with material made of a variety of synthetic or natural fabrics and is secured to the head with ties, straps or loops over the ears or is wrapped around the lower face.
Exceptions to the Requirement to Wear a Face Covering
The Order provides the following exceptions if all alternatives to wearing a face covering have been exhausted (the Order refers to face shields as a possible alternative, but notes that the CDC has said there is insufficient evidence as to whether they are effective in protecting others from respiratory droplets that may escape through gaps):
- Safety Hazard: if wearing a face covering while working would create an unsafe condition in which to operate equipment or execute a task as determined by local, state, or federal regulators or workplace safety guidelines (discomfort does not suffice);
- Medical Condition: if wearing a face covering would either cause or worsen a medical condition including respiratory issues that impede breathing, a mental health condition or a disability;
- To Confirm Identity: when necessary to confirm the individual’s identity;
- To Obtain Dental and Other Services: when obtaining a service that requires the temporary removal of the face covering, such as dental services;
- Working In Isolation: when working alone and isolated from interaction with other people with little or no expectation of in-person interaction (e.g., inside a cab of a construction crane, alone in an office with four walls and a door, alone in a cubicle with three walls high enough to block breathing zone of passersby and a door or entryway with no expected entrants, alone in a field or open area with no anticipated contact with others); and
- Lip Reading: if an individual is communicating or seeking to communicate with someone who is hearing-impaired or has another disability, where the ability to see the mouth is essential for communication.
Obligations of Businesses and Schools
The Order imposes the following obligations relating to face coverings on businesses and school entities (broadly defined to include any type of brick and mortar or cyberschool from nursery through post-secondary levels, career and technical training centers, and educational programming in residential or institutional settings):
- Enforce Face Covering Mandate: require that all individuals including employees, customers, teachers, students, and visitors wear a face covering, and take reasonable steps to enforce this requirement (The FAQs explain that students may remove face coverings to eat and during 10-minute face covering breaks while at least six feet apart)1;
- For Those Who Cannot / Refuse to Wear Face Covering: mitigate or eliminate exposure to others;
- Signage: post prominent signs informing everyone that face coverings are required by Order of the Secretary of Health; and
- Reasonable Accommodations: provide reasonable accommodations to those who represent that they have a medical condition, mental health condition or disability that makes it unreasonable for them to wear a face covering. However, businesses may decline service to such individuals so long as other reasonable accommodations are offered such as: alternatives to face coverings (e.g., face shields), curbside pick-up, delivery, or other innovative solutions. The FAQs explain that businesses and schools can have a “no exceptions” or stricter face covering policy than the Commonwealth, as long as they make other reasonable accommodations as required by local, state and federal law. In this regard, the Equal Employment Opportunity Commission’s guidance on providing reasonable accommodations explains that an employer may choose among reasonable accommodations as long as the chosen accommodation is effective,2 and the Pennsylvania Human Relations Commission had published guidance on the prior Order Requiring Universal Face Coverings that provided examples of reasonable accommodations. For students, the FAQs published by the Pennsylvania DOH explain that accommodations for students will be governed by Section 504 of the Rehabilitation Act or the Individuals with Disabilities Education Act (IDEA), in partnership with the student’s health care provider, school nurse and Individualized Education Program (IEP) team.
The Order prohibits (1) enforcing face coverings when it is unsafe to do so; (2) restraining, assaulting, using force or physically removing anyone who refuses to comply with the Order when it would not otherwise be legal to do so; and (3) violating other laws, including state and federal anti-discrimination laws. The FAQs explain that law enforcement officers are authorized to issue warnings or citations to anyone who does not comply with the Order, and the Department of Health can issue warnings and citations to businesses, persons, facilities, and organizations that do not comply.
3. Colleges and Universities Are Strongly Encouraged to Implement Testing Strategies
To prevent COVID-19 transmission, the Pennsylvania Department of Health and Department of Education have issued detailed COVID-19 testing recommendations to colleges and universities across the Commonwealth to develop and implement a COVID-19 testing strategy that aligns with CDC guidance.
The DOH and PDE recommend that the strategy include: (1) entry screening testing at the outset of each term and upon return to campus after a break (testing each student twice with four days between tests); (2) regular screening during the term in addition to testing upon manifestation of signs or symptoms or exposure to known or suspected cases; (3) case investigation; (4) contact tracing; (5) isolation and quarantine; (6) other measures to mitigate spread of COVID-19 including daily wellness checks (e.g., using COVID Alert PA app), ensuring that students, faculty and staff stay home when sick, physical distancing, mask usage, hand hygiene and enhanced cleaning and disinfection practices; and (7) a communication plan. Testing strategies should prioritize communicating though a health equity lens; protecting vulnerable students, faculty and staff with underlying health conditions; limiting transmission to the public and to families on home or campus visits; and considering levels of community transmission in the locale.
Before embarking on implementing a testing strategy, the DOH and PDE stress that colleges and universities first consider feasibility, including: the availability of dedicated sources and logistics needed to conduct broad testing among students, faculty and staff; the capacity for followup and contact tracing; the existence of sufficient facilities for isolation; the level of local community transmission; the likelihood of future exposures; the costs; the number of tests needed; and the acceptability of the testing approach among students, families, faculty and staff.
4. Acute Care Hospitals Directed to Accelerate Necessary Elective Procedures and Coordinate With Regional Partners to Ensure Pennsylvanians with Acute Needs Receive Adequate Care
Dr. Levine issued a memorandum to acute care hospitals in Pennsylvania directing them to work within established health care coalitions to plan how they will support each other as hospitalizations rise. Dr. Levine explained that while improvements in testing availability, therapeutics and treatment options will mitigate hospitalization rates, the overall number of COVID-positive cases is expected to be much larger than in the past spring. She reports that current modeling projects a surge in new cases in December 2020 and hospitalization rates in January 2021 that may overwhelm Pennsylvania’s health care system. Specifically, if Intensive Care Unit (ICU) admissions continue at the current rate, Pennsylvania is predicted to run out of ICU beds in December, and while there will be sufficient medical-surgical beds, this may not be the case in all regions.
In order to avoid becoming overwhelmed like hospitals in Texas, Wisconsin and Arizona, which have run out of ICU beds, medical-surgical beds, ventilators and/or staff, Dr. Levine has directed acute care hospitals to proactively accelerate necessary elective surgeries to reduce the risk that they will be cancelled or postponed at the last minute if the hospital experiences a surge. Dr. Levine acknowledged that not all elective procedures are optional or perfunctory. Many are essential to quality of life, prevent the worsening of chronic or acute symptoms, and many procedures may have already been put off too long. She advises hospitals to prepare to evaluate which procedures can wait without harming a patient if the hospital experiences a surge.
Dr. Levine further directed acute care hospitals to collaborate through emergency preparedness health care coalitions to coordinate between hospitals and systems at a regional level to share resources and balance patient loads, and timely and accurately report data to the state through established systems. She notes that if the Department of Health determines that the hospital community cannot effectively manage the situation to provide care to the patients who need it the most, it will intervene to ensure that those with acute needs receive adequate care.
The Secretary of Health urged Pennsylvanians to follow these directives and work together to protect communities and the most vulnerable from COVID-19: “Wear a mask, wash your hands, stay apart and download the COVID Alert PA app. If you test positive, please answer the call of the case reviewer and provide information that can help protect others. It’s the selfless, right thing to do.”
1 On November 23, 2020, the secretary of health modified her Order so that it now requires businesses not just to take reasonable steps to enforce it, but to actually enforce the Order. In exchange for this increased responsibility, the governor issued an order that, among other things, gave businesses, restaurant owners, and employees immunity from civil liability for enforcing the Order against customers and visitors unless in doing so they engage in willful misconduct, gross negligence, recklessness, or bad faith. Importantly, the governor’s Order does not extend immunity from liability to employers for enforcing the Order with their employees.