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.
There were several developments in Pennsylvania this week regarding orders dealing with the COVID-19 pandemic. Governor Tom Wolf extended his “stay at home” order to all counties in the Commonwealth. The governor also stepped up the enforcement of the business closure orders by state and local government officials. Then, late on Wednesday, April 1, 2020, the Department of Community and Economic Development (DCED) announced that the waiver process for securing an exemption from the business closure orders will close on Friday, April 3, 2020, at 5:00 p.m. EDT, again leaving the business community scrambling. This new deadline was imposed with only 48 hours’ notice, and it cuts off the ability of businesses to submit waivers for current or future operations and projects, despite the fact that the business closure orders are in effect indefinitely and the DCED has a huge backlog of waiver requests, having received over 32,000 of them.
Businesses seeking to continue physical operations in Pennsylvania should review the following resources immediately to verify their status as a life-sustaining business and assess whether to contact the DCED for guidance and/or submit an online waiver application.
- List of Life-Sustaining Businesses (also referred to as Updated Business Guidance). This List sets forth industry groups organized by North American Industry Classification System (NAISC) codes, with a column titled “May Continue Physical Operation” and a YES or NO designation. This List has been periodically updated, and the most recent version was posted on April 1, 2020, at 4 p.m.
- FAQs on Business Guidance. The most recent version of the FAQs was updated on April 1, 2020, and it now has 39 FAQs and answers. FAQ 1 provides an overview of how a business should assess its ability to continue physical operations. The FAQs advise that if a business falls within a category designated as life-sustaining, then the business is NOT required to seek a waiver, and it may maintain in-person operations provided that the business adheres to social distancing restrictions and takes other mitigation measures to ensure the health and safety of its employees and patrons.
- March 23, 2020 CISA Guidance. The List of Life-Sustaining Businesses is intended to be interpreted as consistent with the Essential Critical Infrastructure Workforce as described by the U.S. Department of Homeland Security’s Cybersecurity and Infrastructure Security Agency (CISA) in an advisory titled “Identifying Critical Infrastructure During COVID-19, Version 1.1,” issued on March 19, 2020, as amended March 23, 2020 (“March 23, 2020 CISA Guidance”). Pennsylvania is NOT adopting subsequent changes to the CISA guidance, which broadened the description of the Essential Critical Infrastructure Workforce. The March 23, 2020 CISA Guidance lists specific types of workers considered to be included in the Essential Critical Infrastructure Workforce in the fields of (1) Healthcare and Public Health; (2) Law Enforcement, Public Safety and First Responders; (3) Food and Agriculture; (4) Energy, including the electricity industry, petroleum workers and natural and propane gas workers; (5) Water and Wastewater; (6) Transportation and Logistics; (7) Public Works, including plumbers, electricians, exterminators, and other service providers who provide services necessary to maintain safety, sanitation and essential operation of residences; (8) Communications and Information Technology; (9) Other Community-based Government Operations and Essential Functions; (10) Critical Manufacturing; (11) Hazardous Materials; (12) Financial Services; (13) Chemical; and (14) Defense Industrial Base.
- Contact the DCED. For businesses that are uncertain of their designation as life-sustaining, the governor’s March 20, 2020 press release advised them to seek guidance from the DCED by emailing it at email@example.com or calling 877-PA-HEALTH and selecting option 1 to reach DCED staff.
- Online Waiver Application. The waiver form is a short on-line application that provides links to the governor’s Order and FAQs. It requires applicants to certify that they have read the closure orders, the List of Life-Sustaining Businesses and the FAQs. Applicants must also explain how the business meets the life-sustaining definition, state whether the business has a plan to meet CDC recommended guidelines to maintain employee safety during the COVID-19 pandemic, and list the number of employees who would be in the company’s physical location to perform the critical work.
- Business Closure Enforcement Guidance. The governor has directed the Liquor Control Board, Department of Health, Department of Agriculture, State Police, municipal police and local officials to enforce the closure orders to the fullest extent of the law. They have been given Business Closure Order Enforcement Guidance that explains that closures are enforceable through criminal penalties under the Disease Control and Prevention Law of 1955, the Administrative Code of 1929, and other laws. As of March 31, 2020, the state police reported having issued 123 warnings notices.
Businesses have been immersed this week in determining how new, complex federal paid leave, unemployment and other legislation will impact their operations and viability. Many of them are sure to be pressing the DCED for relief from this suddenly imposed deadline.