On May 8, 2020, Pennsylvania Governor Tom Wolf moved 24 counties from the “red” to “yellow” phase under his Process to Reopen Pennsylvania. Those counties are: Bradford, Cameron, Centre, Clarion, Clearfield, Clinton, Crawford, Elk, Erie, Forest, Jefferson, Lawrence, Lycoming, McKean, Mercer, Montour, Northumberland, Potter, Snyder, Sullivan, Tioga, Union, Venango, and Warren. And effective May 15, 2020, the following 13 counties will be moved from the red to the yellow phase: Allegheny, Armstrong, Bedford, Blair, Butler, Cambria, Fayette, Fulton, Greene, Indiana, Somerset, Washington and Westmoreland. 

The movement of these 37 counties to the yellow phase means that certain non-life-sustaining businesses in these counties, including non-essential retail, may recommence in-person operations, provided they implement specific health and safety measures set forth in guidance issued by the governor on May 4, 2020. Even in the yellow phase, however, several categories of businesses remain prohibited from resuming in-person operations.

Non-Essential Businesses Permitted to Reopen in Whole, or in Part, in the Yellow Phase

According to the governor’s guidance, all businesses in counties designated as yellow may reopen in-person operations, with the exception of businesses in categories specifically excluded under the governor’s phased reopening process, or other orders issued by the governor or the Pennsylvania secretary of health.

Indoor Recreation, Health and Wellness Facilities, and Personal Care Services

The governor’s phased reopening process, which appears as a page on the governor’s website, and the governor’s and secretary of health’s yellow-phase orders, provide that “Indoor Recreation, Health and Wellness Facilities and Personal Care Services (such as gyms, spas, hair salons, nail salons, and other entities that provide massage therapy), and all Entertainment (such as casinos and theaters)” must remain closed in the yellow phase.  FAQs published by the governor’s office further explain that:

• “Indoor recreation” includes bowling, arcades, racquetball and other indoor sports or training, go-kart and other racing, laser tag, pool halls, trampoline facilities, indoor mini golf, and other similar facilities;

• “Health and wellness facilities” include gyms, saunas, tattoo and piercing shops, tanning, spas, hair salons, nail salons, entities that provide massage therapy, and other similar facilities;

• “Entertainment” includes casinos, theaters, concerts, museums, zoos and botanical gardens, racetracks, professional, semiprofessional, or amateur/membership sports teams or clubs, amusement and water parks, carnivals, playgrounds, and other similar facilities; and

• Indoor malls with internal-only entrances must remain closed.

Retail, Restaurants, and Bars

The governor’s May 4, 2020 guidance provides that, although in-person retail business is allowable in the yellow phase, curbside pickup and delivery of goods are preferable. Restaurants and bars remain limited to carryout and delivery service under the guidance and orders.

Businesses that Operated Remotely Via Telework During the Red Phase

According to the governor’s and secretary of health’s yellow-phase orders, businesses that had been continuing some or all of their operations remotely in the red phase with employees teleworking may not commence in-person business operations for those employees or business functions in the yellow phase.  This directive does not appreciate that for many non-life-sustaining businesses, some jobs could be performed remotely when the business closed in-person operations in the red phase, but when such businesses reopen in-person operations in the yellow phase, teleworking may no longer be feasible.  The governor’s guidance appears to recognize this reality and provides that remote or virtual work arrangements must be employed “whenever and wherever possible.”  In addition, the governor’s reopening process webpage states that telework must continue “where feasible.” 

Required Health and Safety Measures

Businesses permitted to reopen in the yellow phase may do so only if they implement specific measures aimed at protecting employee and customer health and safety. The required measures detailed in the governor’s May 4, 2020 guidance mirror those in the Pennsylvania secretary of health’s April 15, 2020 Order, which became effective April 19, 2020, and was originally applicable to life-sustaining businesses permitted to remain open. The measures include reconfiguration and cleaning of work and public spaces; deployment of protective equipment such as masks and shields; employee temperature screenings in cases of probable or confirmed COVID-19 exposure at the business; notices to customers and employees; and changes to scheduling and break procedures. For a detailed discussion and summary of these requirements, click here.

Previously issued industry-specific guidance applicable to construction, real estate, and vehicle sales businesses remain in effect.

Posting Requirement and Designation of “Pandemic Safety Officer”

In addition to requiring businesses reopening in the yellow phase to adopt stringent health and safety measures, the governor’s guidance imposes a new posting requirement and an obligation to designate a “Pandemic Safety Officer” for each location opening. The required poster, available here, must be displayed in a common space accessible to employees, such as a break room. If the business serves the public, the poster also must be displayed in a “prominent location” near all public entrances. The poster must be signed and dated by the business’s corporate officer, site manager, site foreperson, or equivalent, acknowledging that the business will adhere to the requirements.

Further, the poster must display the name, phone number, and email address of the worksite’s designated “Pandemic Safety Officer.” According to the governor’s guidance, the Pandemic Safety Officer is the person in charge of the COVID-19 safety procedures for the business. The poster further states that the Pandemic Safety Officer is responsible for responding to all employee and subcontractor questions regarding the mandatory health and safety requirements outlined on the poster. The posting requirement is effective May 8, 2020.

Enforcement

The governor’s guidance provides that, consistent with prior orders, Pennsylvania state agencies and local officials will be charged with enforcing the health and safety measures businesses reopening in the yellow phase are required to adopt. The governor previously issued Business Closure Enforcement Guidance, which outlines the statutory basis for enforcement.

Practical Guidance for Businesses Entering Yellow Phase

Businesses within counties moving from the red to yellow phase should:

• Evaluate whether and how they are permitted to reopen;

• Determine which operations and employees can and should continue to operate remotely;

• Understand and implement the health and safety measures required by the governor’s and secretary of health’s orders and guidance; and

• Strategize about how they can meet the evolving needs of their employees and customers.

Because the path of the current public health crisis in Pennsylvania and nationwide is uncertain, businesses need to be watchful and adaptable as new directives and guidance are issued.