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.
Pennsylvania Secretary of Health Rachel Levine, M.D. issued an Order on April 15 aimed at preventing further spread of COVID-19 in the Commonwealth. The Order was immediately effective, but it will not be enforced until 8:00 p.m. Sunday, April 19, 2020. Under the Order, life-sustaining businesses authorized to maintain in-person operations are required to implement numerous health and safety measures that require: reconfiguration of work and public spaces; deployment of protective equipment such as masks and shields; notices to customers and employees; and changes to scheduling and break procedures. These requirements affect all life-sustaining businesses except healthcare providers.
Rules Governing Virtually All Life-Sustaining Businesses
Under the Order, all non-healthcare businesses that are authorized to maintain in-person operations during the COVID-19 pandemic are required to make the following significant changes to their business operations.
- Cleaning. Maintain pre-existing cleaning procedures and routinely clean and disinfect high-touch surfaces that are accessible to customers, tenants, employees and other persons, in accordance with CDC guidelines. Ensure that workspaces and common areas are routinely cleaned, including between shifts.
- Provide Soap and Sanitizer. Provide hand soap and sanitizers, and disinfectant wipes.
- Provide Masks. Provide masks to all employees and require that they be worn at all times while at the worksite (except during eating or drinking). While the Order does not refer to “cloth” masks, prior guidance makes clear that surgical masks are to be reserved for healthcare workers who are not covered by this Order. Employees may bring their own masks, but employers must confirm that the masks comply with the Department of Health’s guidelines. Although employers may approve masks obtained by employees, the onus is on the employer to ensure that there are sufficient masks for all employees prior to the start of the workday. With masks in high demand, this is a significant burden imposed with little notice.
- Stagger Arrivals/Departures and Breaks. When possible, stagger employees’ start and stop times and avoid large gatherings of people entering or exiting buildings simultaneously. Stagger employee break times to ensure that employees can maintain six-foot social distancing.
- Breakroom and Common Area Distancing. Provide sufficient space for employees to have breaks or meals six feet apart from others and reconfigure breakroom seating so employees do not face each other. Limit the number of employees in common areas (locker rooms, breakrooms, cafeterias, conference rooms, etc.) so that employees can maintain six-foot social distancing.
- Meeting Limitations. Conduct meetings virtually, or limit in-person meetings to no more than 10 persons while maintaining social distancing of six feet or more.
- Sufficient Staff to Enforce Distancing. Ensure there are a sufficient number of employees to enforce the social distancing rules and ensure that cleaning protocols are followed.
- No Non-Essential Visitors. Prohibit non-essential visitors from entering the business.
- Inform Employees of Requirements. Ensure that these requirements are communicated to all employees, verbally or in writing, in English and in employees’ preferred language(s).
Rules Governing Virtually All Life-Sustaining Businesses Open to the Public
In addition to the rules set forth above, all non-healthcare businesses that are authorized to maintain in-person operations and are open to and serve the public during the COVID-19 pandemic also must adhere to the following:
- Business by Appointment Only or Limit Occupancy. Conduct business by appointment only. If this is not feasible, limit occupancy to no more than 50% of the occupancy limit stated on the location’s certificate of occupancy.
- Adjust Hours for Cleaning/Restocking. If necessary, adjust business hours to ensure there is sufficient time for cleaning and restocking.
- Employee Hand-Washing Breaks. Schedule hourly handwashing breaks for each employee.
- Customer Masks. Require all customers to wear masks while on the premises unless they are under age two or cannot wear a mask for health reasons (no medical documentation necessary). Deny entry without a mask unless the business provides medications, medical supplies or food, in which case, the business must provide alternative pick-up or delivery methods. While the Order does not refer to “cloth” masks, prior guidance makes clear that surgical masks are to be reserved for healthcare workers who are not covered by this Order.
- Social Distancing. Maintain social distancing requirements at checkout and counter lines.
- Post Social Distancing Rules. Place signs throughout the business informing the public of the social distancing rules.
- Checkout Counter Shields & Distancing. Install shields or other barriers at checkout counters and registers to physically separate cashiers from the public, close checkout lines to maintain social distancing between lines, or take other measures to ensure social distancing between cashiers and customers.
- Cash Register Spacing & Rotating Usage. Businesses with multiple registers may only use every other register. In addition, every hour, the business must rotate customers and employees to the previously closed registers while the other registers and credit card machines are cleaned.
- Cart Cleaning. Assign employees to wipe down carts and handbaskets before they are made available to customers.
- Online Ordering. Encourage online ordering by providing delivery and pickup.
- Elderly/High-Risk Shopping Hours. Designate a specific time at least once per week for the elderly and individuals with a high risk of severe illness from COVID-19 to shop.
Rules Governing Exposure to a Probable or Confirmed COVID-19 Case at Virtually All Businesses
Upon learning that a person with a probable or confirmed case of COVID-19 has been in the business (including customers, tenants, employees, visitors, etc.), businesses must take the following steps:
- Close, Aerate, Clean Affected Area. Close off areas visited by the person, open doors and turn on fans, and wait at least 24 hours, or as long as practicable, before cleaning. Cleaning staff should clean all rooms, common spaces, and equipment used by the person.
- Identify Employees in Close Contact. Identify all employees who came “in close contact” with the person (meaning the person came “within 6 feet for about 10 minutes”) during the period 48 hours before or after the person exhibited symptoms to the time the person self-isolated.
- Asymptomatic. If employees exposed to the person remain asymptomatic, the employees should adhere to relevant CDC Guidelines.
- Symptomatic. If employees exposed to the person become sick during the workday, they should be sent home immediately. The employer should treat the sick employee as if the employee has a probable case of COVID-19, and clean and disinfect the employee’s workspace, and identify all other employees who were in close contact with the ill employee 48 hours before the employee exhibited symptoms. Compile information on all employees who came in contact with the sick employee.
- Promptly Notify Employees in Close Contact. Promptly notify employees who were in close contact with anyone with a known exposure to someone with COVID-19 about their exposure, while adhering to relevant confidentiality laws.
- Employee Temperature Checks. Implement temperature screenings before employees enter the building, before the start of each shift, or before employees begin work. If employees have a temperature of 100.4 Fahrenheit or higher, they must be sent home. Employers must ensure that employees practice social distancing while conducting temperature screenings.
- Sick Employees Stay Home. Sick employees must be told to promptly notify their supervisors and stay home if they have a fever, cough, shortness of breath or other symptoms of COVID-19. Employees should be told not return to work “until CDC criteria to discontinue isolation are met, in consultation with healthcare providers and state and local health departments.”
- Staff to Carry Out Protocols. Ensure that the business has a sufficient number of employees to carry out these protocols effectively and timely.
While the Order does not specify penalties for non-compliance, the governor issued a press release announcing the Order, noting that failure to comply will result in enforcement action beginning on Sunday, April 19 at 8:00 p.m., which could include citations, fines or license suspensions. The governor previously issued Business Closure Enforcement Guidance, which outlines the statutory basis for enforcement. The Guidance notes his expectation that enforcement will be progressive and begin with a warning, given the unique nature of this event and how quickly it is evolving. There is additional guidance for life-sustaining businesses posted in the form of FAQs.
What Should Employers Do?
Employers need to immediately study the Department of Health Order and determine what changes they may need to make to their operations. The Order leaves open a number of practical questions that employers must try to address before enforcement begins on April 19. In particular, employers have little time to purchase masks for employees and customers and install register shields.
In an effort to assist employers that are trying to procure facemasks, the Pennsylvania Department of Community and Economic Development has created a COVID-19 PPE & Supplies Business-2-Business (B2B) Interchange Directory that lists companies that may be able to supply fabric, surgical, and N95 facemasks.