Note: Because the COVID-19 situation is dynamic, with new governmental measures each day, employers should consult with counsel for the latest developments and updated guidance on this topic.

Updated: March 21, 2020

Pennsylvania Governor Tom Wolf announced that his administration will not begin enforcement actions against non-life-sustaining businesses in Pennsylvania that do not close their physical locations until Monday, March 23 at 8:00 a.m.  After conferring with businesses, stakeholders and individuals, and to align with the Cybersecurity and Infrastructure Security Agency advisory released on March 19, the Wolf administration did the following:

• List of “Life Sustaining” Businesses – has been and will continue to be updated.

• “Life Sustaining” Business Definition – more information has been provided to help businesses determine if they qualify as a Life-Sustaining Business, including a reference to the Essential Critical Infrastructure issued by the Department of Homeland Security Cybersecurity and Infrastructure Security Agency (CISA) Advisory.

• Waivers – provided a form to fill out and submit electronically to apply for a waiver.

• Maintenance of Critical Functions – permits limited on-site personnel to maintain critical functions.

• Enforcement – explained that penalties for non-compliance will be progressive, starting with a warning and progressing to citations, fines, license suspensions, forfeiture of disaster relief, termination of state loan or grant funding (including Redevelopment Assistance Capital Project), and criminal penalties would follow for violations.

This guidance is welcome relief.

* * * * * * * * * * * * * * * * * * * * * * * * * *

On March 19, 2020, Pennsylvania Governor Tom Wolf announced in a televised address and corresponding press release that he was superseding his prior March 16 Order closing “non-essential” businesses for 14 days because state officials were not seeing full compliance.  To slow the spread of COVID-19, Governor Wolf reported that state officials have begun to enforce mandatory closures of restaurants and bars, and will expand that enforcement to “non-life-critical businesses.”  He directed restaurants and bars to cease all dine-in activities or face citations, fines or license suspensions.  Governor Wolf directed “other non-life-critical businesses” to cease operations of their physical locations by 8 p.m. on March 19, 2020, with enforcement to begin Saturday, March 21, 2020 at 12:01 a.m.  He reported that state officials are working with local government on enforcement, and that if a business’ mission is not life-critical, then its employees should work remotely.   

March 19, 2020 Order Regarding the Closure of All Businesses that are Not “Life Sustaining”

The actual Order issued by the governor provides in Section 1 that “No person or entity shall operate a place of business in the Commonwealth that is not a life sustaining business regardless of whether the business is open to members of the public.”  The Order does not prohibit virtual or telework operations (e.g., work from home) so long as “social distancing and other mitigation measures are followed in such operations.”  The Order is effective immediately (March 19, 2020) and will remain in effect until further notice.  Enforcement action will begin against non-life-sustaining businesses that are out of compliance effective Saturday, March 21, 2020, at 12:01 a.m. 

The deadline of 8 p.m. Thursday, March 19 appears in Section 2 of the Order, which relates to enforcement action against non-compliant carry-out, delivery, and drive-through food and beverage service businesses. The governor warned that if these businesses are not utilizing social distancing or other mitigating measures, they will be closed down by the Department of Health and potentially lose their license with the Liquor Control Board. 

Declaring that “Life Sustaining Operations” may stay open, the governor noted that social distancing practices and other mitigation measures defined by the Centers for Disease Control to protect workers and patrons must also be in place.  Attached to the Order is a list of “Life Sustaining” Businesses.  While not labelled, the list appears to be classified by NAICS (the North American Industry Classification System) industry grouping, with a column specifying whether or not the industry group “May Continue Physical Operations.”  In most instances, employers can identify their NAICS Industry Code(s) by referring to their most recent EEO-1 report.  As the attachment to the Order covers all industries, there are too many categories to note here.  Employers should review their NAICS code and the list attached to the Order to determine their status. Given the fact that many businesses are in the supply chain for other businesses that are listed as life-sustaining, the Pennsylvania Chamber of Commerce has worked with state officials to provide guidance.  To determine if your business is “a life-sustaining business, contact the Department of Community and Economic Development at ra-dcedcs@pa.gov.  To seek an exemption from the Governor’s Order, contact RA-dcexemption@pa.gov.

March 19, 2020 Department of Health Order

At the same time that the governor issued his Order, the secretary of health for the Commonwealth of Pennsylvania, Rachel Levine, MD, issued a corresponding Order connecting the actions of the state with the 185 positive cases of the virus in Pennsylvania as of March 19, 2020.  The secretary justified the closure of “non-life sustaining businesses” to prevent unnecessary gatherings, personal contact and interaction that will increase the risk of transmission and the risk of community spread of COVID-19.  She confirmed the governor’s same-day (Thursday, March 19, 2020) enforcement deadline against food and beverage businesses, and the Saturday, March 21, 2020 enforcement deadline for all other non-life sustaining businesses.

Failure to Comply and Severe Enforcement Measures

In the governor’s press release, he states that he has directed multiple state agencies, including the Pennsylvania Liquor Control Board, Departments of Health and Agriculture, and State Police, and local officials to enforce the closure orders “to the full extent of the law.”  According to the press release, noncompliant entities may forfeit their ability to receive applicable disaster relief and may be subject to “other appropriate administrative action,” such as termination of state loan or grant funding, including Redevelopment Assistance Capital Project (RACP) grant funding, and suspension or revocation of licensure.  The press release also provides that, in addition to other criminal charges that might be applicable, the Department of Health may prosecute noncompliant entities for failure to comply with health laws, including quarantine, isolation, or other disease control measures, which may result in fines or imprisonment. 

Impact of These Late-in-the-Day Directives and Orders

The timing of the governor’s televised address at 5 p.m. on Thursday, March 19, with a deadline to cease operations within three hours and until further notice, sent the business community reeling.  Efforts to get a copy of the governor’s Order were hampered by the large volume of traffic on the governor’s webpage.  The list of Life Sustaining Businesses requires an employer to match their business to a specific industry category to determine if it is listed as a “Yes” or “No” in the “May Continue Physical Operations” column.  As noted above, no explanation is provided as to the origin of the list, but it appears to be organized by NAICS industry codes.  Further, because these actions occurred at the end of the business day, no further clarification was available directly from the governor’s office.  For now, employers should review their NAICS codes and determine if they are listed as “life sustaining” and may continue physical operations.  Understanding that many businesses may believe they are life-sustaining despite their industry code, if law enforcement relies on a report of these codes to identify non-life-sustaining businesses that are out of compliance when it begins enforcement on Saturday March 21, it remains to be seen how employers can counter that assessment. If in doubt, questions on “life-sustaining” status should be directed to the Department of Community and Economic Development, which is also accepting requests for waivers.

Further, the 8 p.m. Thursday, March 19 deadline in the governor’s Order relates to enforcement action against restaurants and bars, and not to other Non-Life Sustaining Businesses, conflicting with the governor’s other communications.  This has left businesses unsure whether they can dispatch skeleton crews to worksites before the deadline to close operations in an orderly fashion.  This stands in contrast to orders issued in other jurisdictions around the country, such as San Francisco, CA, which have permitted non-essential businesses to access worksites to perform the minimum necessary activities to maintain the value of the business’s inventory, ensure security, process payroll and employee benefits, or for related functions, or to facilitate employees being able to work from home.  It remains unknown if the delay in enforcement by the Commonwealth was to allow similar preparedness operations for businesses ordered to shut down.

Business leaders sought clearer direction from the governor and other state and local officials on Friday, March 20, resulting in the guidance above.