The rapidly changing information at this stage of the pandemic resembles the pandemic’s early days, when employers struggled to interpret and implement guidelines and rules that seemed to be updated every other day.
Pennsylvania and Philadelphia have each announced prospective dates for lifting a majority of the mandatory COVID-19 requirements applicable to employers.
At the same time, these announcements create a new conundrum for Pennsylvania and Philadelphia employers: In the absence of state and local mandates, what health and safety policies should employers implement to mitigate the ongoing threat of COVID-19? There is no easy answer.
Pennsylvania Lifting Mitigation Order
On May 4, 2021, Governor Tom Wolf’s administration announced that effective May 31, 2021, (Memorial Day) COVID-19 mitigation orders will be lifted, except the Universal Face Coverings Order (as amended). Requirements such as testing and reporting new cases will remain in place for Pennsylvania hospitals and long-term care facilities. And Governor Wolf’s Proclamation of Disaster Emergency will remain in effect, which means he will still be able to use his emergency powers to issue executive orders. Overall, though, this is a significant step toward bringing the state back to business as usual.
Pennsylvania has already put into motion processes that will automatically end certain requirements. On May 13, 2021, Pennsylvania’s Department of Health amended its November 23, 2020, Mitigation and Enforcement Order by adding an expiration date and time: May 31, 2021, at 12:01 a.m. (prior to amendment, there was no expiration date). The Mitigation and Enforcement Order is the primary source for restrictions applicable to businesses that are not healthcare providers and that are maintaining in-person operations, so its repeal will affect a large number of businesses operating across the state.
For example, rescission of the Mitigation and Enforcement Order will eliminate state requirements for cleaning and sanitizing, implementing temperature screenings, conducting meetings virtually where possible and contact tracing. For covered businesses that serve the public, the rescission will eliminate requirements such as providing hand sanitizer, posting signage and requiring employees and guests to maintain social distance. Capacity limitations and gathering restrictions will no longer apply.
However, as mentioned above, for now, Pennsylvania’s Universal Face Coverings Order, as amended, remains in effect. That said, Pennsylvania just announced that the masking order will be lifted on June 28, 2021, or when 70 percent of adults get their second vaccine dose, whichever comes first. And, because Pennsylvania’s Universal Face Coverings Order by reference incorporates the Centers for Disease Control and Prevention’s (CDC) Interim Public Health Recommendations for Fully Vaccinated People, as of May 13, 2021, according to the CDC, fully vaccinated individuals need not wear a face covering in most circumstances. So, for now, employers and businesses now have to grapple with the decision of whether to allow fully vaccinated individuals to enter their premises unmasked and how they would implement a distinction between fully vaccinated individuals and others.
Philadelphia Lifting Safer at Home Requirements
Philadelphia has long had its own health and safety requirements for businesses (aka the “Safer at Home” guidelines), which, in general, have imposed greater obligations upon employers than the statewide requirements. However, Philadelphia announced that it will end these restrictions, with the exception of mask requirements, on June 11, 2021, about two weeks after Pennsylvania ends its applicable mitigation and enforcement order. Philadelphia has not released additional detail on how the restrictions will be rescinded or if new guidelines will be issued.
On May 19, 2021, on the heels of the CDC’s new masking guidelines for fully vaccinated individuals, Philadelphia announced that, effective May 21, 2021, fully vaccinated people need not wear masks when outdoors. (Unlike Pennsylvania, Philadelphia’s mask order does not automatically incorporate federal guidelines.) Philadelphia indicated that it may also modify its masking rules for fully vaccinated individuals with respect to indoor activities, but that such decisions will depend on COVID-19 case and infection rates.
What Does All This Mean for Employers in Pennsylvania?
The rapidly changing information at this stage of the pandemic resembles the pandemic’s early days, when employers struggled to interpret and implement guidelines and rules that seemed to be updated every other day.
Many Pennsylvania employers will embrace these changes as providing much needed flexibility in how they run their operations. However, employers need to be aware that Pennsylvania and Philadelphia’s decisions to rescind certain COVID-19 requirements does not mean that employers should immediately eliminate their corresponding policies. Not only is protecting employees the right thing to do, failing to have or maintain adequate protections can still have legal and practical consequences for employers. For example, right now, there are varying rules for the fully vaccinated and those who are not and we are awaiting further guidance on what reasonable steps employers and businesses should take to enforce the state and local mask requirements for those who are not fully vaccinated. In the interim, there are a continuum of options, with corresponding legal and business risks and benefits, that employers should consider and review with counsel, both now and after June 28, 2021.
Despite the rescission of the majority of the mandatory COVID-19 restrictions in Pennsylvania and Philadelphia, the CDC continues to recommend various safety protocols to prevent and reduce transmission and maintain healthy business operations and work environments, including social distancing, symptom monitoring and cleaning protocols. Additionally, the failure to comply with CDC guidance could serve as the basis for a negligence claim by a customer, visitor or other nonemployee who claims that he or she was infected with COVID-19 because of the failure of the business to comply with CDC guidance.
In addition, under the Occupational Safety and Health Act’s general duties clause, an employer has an obligation to provide a workplace free from recognized hazards that cause, or are likely to cause, death or serious physical harm to employees, such as COVID-19. While OSHA has not issued regulations specific to COVID-19, it has issued Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace, which, in many respects, is based on CDC guidelines. OSHA has also reported that it is finalizing new, temporary regulations that, if enacted, will need to be followed by employers.
Employers should also consider the effect that rescinding health and safety rules may have on an already wary workforce. While some employees may welcome the loosening of restrictions, others may view such decisions as an indication that their employer does not care about their well-being and make them more reluctant to return to the office.
Overall, employers operating in Pennsylvania have many factors to balance in deciding how best to move forward, and we recommend consulting counsel before modifying or removing existing COVID-19 health and safety protocols.
About Duane Morris
Duane Morris has created a COVID-19 Strategy Team to help employers plan, respond to and address this fast-moving situation. Contact your Duane Morris attorney for more information. Prior Alerts on the topic are available on the team’s webpage.
For More Information
If you have any questions about this Alert, please contact Linda B. Hollinshead, Elizabeth Mincer, any of the attorneys in our Employment, Labor, Benefits and Immigration Practice Group or the attorney in the firm with whom you are regularly in contact.
Disclaimer: This Alert has been prepared and published for informational purposes only and is not offered, nor should be construed, as legal advice. For more information, please see the firm's full disclaimer.