Most significantly for Pennsylvania employers, teleworking is again required whenever possible.
As COVID-19 cases continue to rise throughout the United States, Pennsylvania Governor Tom Wolf has pumped the brakes on the commonwealth’s reopening plan in an effort to stifle the virus’ recent increased spread.
To that end, on July 15, 2020, Governor Wolf and Pennsylvania Secretary of Health Dr. Rachel Levine jointly announced the issuance of an executive order that imposes new restrictions on gatherings and businesses for in-person operations. As a targeted mitigation effort in response to recent COVID-19 case increases, the order, which takes effect July 16, 2020, applies statewide, despite the fact that the increase in cases has been overwhelmingly in southwestern Pennsylvania.
Like certain prior Pennsylvania orders announced in April and May, which were subsequently relaxed only a month ago, the new order aims to pull back on in-person operations for retail food services, nightclubs, and gyms and fitness facilities. Additionally, the order requires all businesses to conduct operations through telework arrangements, where possible. The new restrictions and requirements of the order are discussed in more detail below.
Most significantly for Pennsylvania employers, teleworking is again required whenever possible. Pennsylvania generally required teleworking in the red and yellow phases, but removed the requirement in the green phase and instead strongly recommended teleworking. Now, under this new order, unless teleworking is not possible, all businesses must conduct their operations in whole or in part remotely through individual teleworking in the jurisdiction or jurisdictions where they do business. As a result, employers who brought employees back into the physical workplace must immediately reevaluate their operations and return many employees to remote working, consistent with this order.
In addition, the order mandates the following:
Where telework is not possible, employees may conduct in-person business operations, provided that the businesses fully comply with all substantive aspects of: the Order of the Secretary of the Pennsylvania Department of Health Directing Building Safety Measures, issued April 5, 2020; the Order of the Secretary of the Pennsylvania Department of Health Directing Business Safety Measures (to keep employees and customers safe), issued April 15, 2020; and all existing and future applicable guidance issued by my Administration, the Department of Health and the Centers for Disease Control and Prevention.
Thus, not only do employers with in-person operations need to comply with the Department of Health’s Worker Safety Order and Building Safety Order, both of which went into effect in April, but they must also follow any and all applicable guidance, such as the COVID-19 Guidance for Businesses and the Frequently Asked Questions for Businesses Operating During the COVID-19 Disaster Emergency, as well as any industry-specific guidance. We recommend that employers seek advice from counsel to determine how such guidance may apply to their operations.
Retail Food Services Industry
The order specifically imposes new restrictions on bars, restaurants and catered events including the following:
- Bars are prohibited from conducting operations unless they offer “sit-down, dine-in meals or take-out sales of alcoholic beverages.” Additionally, alcohol may only be served for “on-premises consumption when in the same transaction as a meal.” “Bar service” is expressly prohibited and all service must occur at a table or booth. Further, takeout sales of alcohol for off-site consumption are permitted subject to any restrictions imposed by Pennsylvania law. The order further requires bars to reduce indoor capacity to 25 percent of the establishment’s fire code maximum occupancy. Lastly, a “discrete indoor event or gathering” in a bar cannot exceed 25 people.
- Restaurants and private catered events are required to reduce indoor dining to 25 percent of their stated fire code maximum occupancy. Like bars, restaurants hosting “discrete indoor event[s] or gathering[s]” must ensure such events do not exceed 25 persons. Of course, social distancing, face masks and other mitigation measures “must be employed to protect workers and patrons.” Lastly, alcohol may only be served for on-premises consumption when in the same transaction as a meal. Takeout sales of alcohol at restaurants for off-site consumption are permitted subject to any restrictions imposed by Pennsylvania law.
Importantly, retail food services establishments are still permitted to provide takeout and delivery as well as dine-in service in both indoor and outdoor seating areas so long as they strictly adhere to Pennsylvania’s Guidance for Businesses in the Restaurant Industry Permitted to Operate During the COVID-19 Disaster Emergency, as required by the order. In particular, the order imposes certain minimum requirements and specifications for continuation of indoor/outdoor dine-in service, including the following mandates:
- Nonbar seating in outdoor areas may be used for customer seating.
- Customers being served must be seated at a table.
- The maximum occupancy limit includes staff.
Nightclubs Prohibited from Conducting Operations
Perhaps most sweepingly, the order expressly prohibits nightclubs from conducting operations.
The order applies to “nightclubs,” as defined by the Clean Indoor Air Act as a “public hall or hall for which admission is generally charged and which is primarily or predominantly devoted to dancing or to shows or cabarets as opposed to a facility that is primarily a bar, tavern or dining facility.” 35 P.S. 637.2.
Events and Gatherings Outside of the Retail Food Services Industry
The order pulls back on the relaxation of gathering restrictions and limits gathering sizes. For purposes of the new restrictions, an “event and gathering” is a “temporary grouping of individuals… that takes place over a limited timeframe, such as hours or days.” For instance, the definition includes fairs, festivals, concerts, performances, movie screenings, conferences, etc. Under the order, the maximum occupancy limits, which include staff, are as follows:
- Indoor gatherings are limited to 25 people.
- Outdoor events and gatherings are limited to 250 people.
Gyms and Fitness Facilities
Although permitted to continue indoor operations, gyms and fitness facilities must prioritize outdoor fitness activities. Under the order, “outdoor activities must follow masking requirements” provided by the commonwealth and “must provide for social distancing requirements.” The limitations on events and gatherings, discussed above, also apply to gyms and facilities.
The new order supersedes any conflicts with the prior May 8 and May 27 orders. Pennsylvania businesses potentially affected by the order should review its terms and limitations with diligence, as the order directs licensing and inspection agencies “to increase their enforcement efforts to ensure compliance with the… critical mitigation measures.”
Although Pennsylvania has not updated its guidance to conform with the July 15, 2020, order, it is expected that the commonwealth will issue updated guidance in the near future.
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