This newest Pennsylvania order creates an extensive list of new requirements for employers in various industries across the state.

On April 15, 2020, Pennsylvania Secretary of Health Rachel Levine issued an order requiring employers that have maintained in-person operations, except health care providers, to implement specific social distancing, mitigation and cleaning protocols. This order follows an April 5, 2020, order by Secretary Levine establishing certain requirements for maintaining and cleaning buildings for such businesses. The new order goes into effect April 19, 2020 at 8:00 p.m.

Requirements for All Non-Health Care Businesses Authorized to Maintain In-Person Operations

The order requires all businesses authorized to maintain in-person operations (pursuant to the orders issued by Governor Tom Wolf and Secretary Levine on March 19, 2020), other than health care providers, to implement, as applicable, the following protocols:

1. In addition to maintaining preexisting cleaning protocols established in the business, clean and disinfect high-touch areas routinely in accordance with guidelines issued by the Centers for Disease Control and Prevention (CDC) in spaces that are accessible to customers, tenants or other individuals;
2. Maintain preexisting cleaning protocols established by the business for all other areas of the building;
3. Establish protocols for execution upon discovery that the business has been exposed to a person who is a probable or confirmed case of COVID-19, including:
   1. Close off areas visited by the person who is a probable or confirmed case of COVID-19. Open outside doors and windows and use ventilation fans to increase air circulation in the area. Wait a minimum of 24 hours, or as long as practical, before beginning cleaning and disinfection. Cleaning staff should clean and disinfect all areas such as offices, bathrooms, common areas including but not limited to employee break rooms, conference or training rooms and dining facilities, shared electronic equipment like tablets, touch screens, keyboards, remote controls and ATM machines used by the ill person, focusing especially on frequently touched areas;
   2. Identify employees who were in close contact (within about 6 feet for about 10 minutes) with a person with a probable or confirmed case of COVID-19 from the period 48 hours before symptom onset to the time at which the patient isolated;
      1. If the employee remains asymptomatic, the person should adhere to the practices set out by the CDC in its April 8, 2020, Interim Guidance for Implementing Safety Practice for Critical Infrastructure Workers Who May Have Had Exposure to a Person with Suspected or Confirmed COVID-19;
      2. If the employee becomes sick during the work day, the person should be sent home immediately. Surfaces in the employee’s workspace should be cleaned and disinfected. Information on other employees who had contact with the ill employee during the time the employee had symptoms and 48 hours prior to symptoms should be compiled. Others at the workplace with close contact within 6 feet of the employee during this time would be considered exposed;
      3. Promptly notify employees who were close contacts of any known exposure to COVID-19 at the business premises, consistent with applicable confidentiality laws;
      4. Ensure that the business has a sufficient number of employees to perform the above protocols effectively and timely;
   3. Implement temperature screening before an employee enters the business, prior to the start of each shift or, for employees who do not work shifts, before the employee starts work, and send employees home who have an elevated temperature or fever of 100.4 degrees Fahrenheit or higher. Ensure employees practice social distancing while waiting to have temperatures screened;
   4. Employees who have symptoms (i.e., fever, cough, or shortness of breath) should notify their supervisor and stay home;
   5. Sick employees should follow CDC-recommended steps. Employees should not return to work until the CDC criteria to discontinue home isolation are met, in consultation with health care providers and state and local health departments.
4. Stagger work start and stop times for employees when practicable to prevent gatherings of large groups entering or leaving the premises at the same time;
5. Provide a sufficient amount of space for employees to have breaks and meals while maintaining a social distance of 6 feet, while arranging seating to have employees facing forward and not across from each other in eating and break settings;
6. Stagger employee break times to reduce the number of employees on break at any given time so that appropriate social distancing of at least 6 feet may be followed;
7. Limit persons in employee common areas (such as locker or break rooms, dining facilities, training or conference rooms) at any one time to the number of employees that can maintain a social distance of 6 feet;
8. Conduct meetings and trainings virtually (i.e., by phone or internet). If a meeting must be held in person, limit the meeting to the fewest number of employees possible, not to exceed 10 employees at one time, and maintain a social distance of 6 feet;
9. Provide employees access to regular handwashing with soap, hand sanitizer and disinfectant wipes and ensure that common areas (including but not limited to break rooms, locker rooms, dining facilities, rest rooms, conference or training rooms) are cleaned on a regular basis, including between any shifts;
10. Provide masks for employees to wear during their time at the business, and make it a mandatory requirement to wear masks while on the worksite, except to the extent an employee is using break time to eat or drink, in accordance with the guidance from the Department of Health and the CDC. Employers may approve masks obtained or made by employees in accordance with Department of Health guidance;
11. Ensure that the facility has a sufficient number of employees to perform all measures listed effectively and in a manner that ensures the safety of the public and employees;
12. Ensure that the facility has a sufficient number of personnel to control access, maintain order, and enforce social distancing of at least 6 feet;
13. Prohibit nonessential visitors from entering the premises of the business; and
14. Ensure that all employees are made aware of these required procedures by communicating them, either orally or in writing, in their native or preferred language, as well as in English or by a methodology that allows them to understand.

Requirements for Businesses That Serve the Public Within a Building or a Defined Area

In addition to the above requirements applicable to businesses permitted to maintain in-person operations, the following measures apply to businesses, other than health care providers, that serve the public within a building or a defined area:

1. Where feasible, businesses should conduct business with the public by appointment only. To the extent that this is not feasible, businesses must limit occupancy to no greater than 50 percent of the number stated on the applicable certificate of occupancy at any given time, as necessary to reduce crowding in the business, and must maintain a social distance of 6 feet at checkout and counter lines, and must place signage throughout each site to mandate social distancing for both customers and employees;
2. Based on the building size and number of employees, alter hours of business so that the business has sufficient time to clean or to restock or both;
3. Install shields or other barriers at registers and checkout areas to physically separate cashiers and customers or take other measures to ensure social distancing of customers from checkout personnel, or close lines to maintain a social distance between of 6 feet between lines;
4. Encourage use of online ordering by providing delivery or pickup options;
5. Designate a specific time for high-risk and elderly persons to use the business at least once every week if there is a continuing in-person customer-facing component;
6. Require all customers to wear masks while on premises, and deny entry to individuals not wearing masks, unless the business is providing medication, medical supplies or food, in which case the business must provide alternative methods of pickup or delivery of such goods; however, individuals who cannot wear a mask due to a medical condition (including children under the age of 2 years per CDC guidance) may enter the premises and are not required to provide documentation of such medical condition;
7. In businesses with multiple checkout lines, only use every other register, or fewer. After every hour, rotate customers and employees to the previously closed registers. Clean the previously open registers and the surrounding area, including credit card machines, following each rotation;
8. Schedule handwashing breaks for employees at least every hour; and
9. Where carts and handbaskets are available for customer use, assign an employee to wipe down carts and handbaskets before they become available to each customer entering the premises.

What This Means for Employers

This newest Pennsylvania order creates an extensive list of new requirements for employers in various industries across the state. It applies to all businesses that have maintained in-person operations, and mandates additional requirements for businesses that interface with the public, such as life-sustaining retail stores.

Similar to orders in other states, such as New York, New Jersey, Rhode Island and Maryland, employers with in-person operations must provide face masks to their employees and require their employees to wear the masks when on the worksite. For additional information about the orders in other states, please see our New York and New Jersey Alert and Maryland Alert. The demand for such face coverings is high and likely to grow given these new mandates, but available supplies remain low. If an employer has difficulty obtaining such coverings, it should allow employees to wear homemade masks in accordance with the order.

Pennsylvania also is requiring specific protocols upon discovery that the business has been exposed to a person who is a probable or confirmed case of COVID-19. It is not entirely clear from the order what constitutes a “probable” case of COVID-19, though the order references the CDC’s interim guidance, mentioned above. In addition, some of the steps employers are required to take following such exposure are vague, yet could have a significant impact on operations. For example, the requirement to “close off areas visited by the person who is a probable or confirmed case of COVID-19” and then “wait a minimum of 24 hours, or as long as practical, before beginning cleaning and disinfection.” How is “visited” defined and how should the areas be closed off? How much discretion do employers have to determine what is “as long as practical”?

Also included in the requirements for employers who have been exposed to a person with a probable or confirmed case of COVID-19 is the implementation of temperature screenings for other employees before entering the business. Therefore, affected employers should immediately take steps to procure thermometers and establish a procedure for conducting temperature screening of employees entering the worksite. This procedure should include, at a minimum:

• Identifying individuals who will conduct the screening;
• Ensuring they are properly trained and have adequate personal protective equipment;
• Setting a protocol for handling an employee with an elevated temperature reading (including safeguarding, to the extent possible, confidentiality); and
• Taking steps to ensure employees practice proper social distancing from each other during the screening process.

Of course, employers must still comply with the requirements of other federal and state laws, such as the Americans with Disabilities Act and the Pennsylvania Human Rights Act.

Employers in Pennsylvania are advised to consult with counsel to ensure compliance with the ever-changing legal landscape applicable to their operations.

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 Christopher D. Durham, Elizabeth Mincer, any of the attorneys in our Employment, Labor, Benefits and Immigration Practice Group, any member of the COVID-19 Strategy Team 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.