Update: 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. Click here for more information.

*  *  *

On May 1, 2020, Pennsylvania Governor Tom Wolf announced that, effective May 8, 2020, 24 Pennsylvania counties will be moved from the “red” to “yellow” phase under the governor’s Process to Reopen Pennsylvania. The 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.

The movement of these 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 Yellow Phase

According to the governor’s guidance, all businesses in counties designated as yellow may reopen in-person operations effective May 8, 2020, with the exception of businesses in categories specifically excluded under the governor’s phased reopening process, or as identified in orders issued by the governor or the Pennsylvania secretary of health. The governor’s phased reopening process, which appears as a page on the governor’s website, provides 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. Additionally, it states that, although in-person retail business is allowable, curbside pickup and delivery of goods are preferable. Restaurants and bars remain limited to carry-out and delivery service.

According to the governor’s May 4, 2020 guidance, businesses that have been operating remotely through teleworking by their employees must continue to do so in the yellow phase. However, the guidance goes on to say that remote or virtual work arrangements must be employed “whenever and wherever possible”; and the governor’s reopening process webpage indicates 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 guidelines mirror those in the Pennsylvania secretary of health’s April 15, 2020 Order, which became effective April 19, 2020. 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 May 4, 2020 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 of the business’s 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.

Open Questions

The governor’s movement of 24 counties to the yellow phase of his reopening process raises numerous questions about which businesses are permitted to reopen in these counties and which are not. In particular, questions about whether a particular business fits into one of the categories excepted from reopening (i.e., Indoor Recreation, Health and Wellness Facilities, Personal Care Services, and Entertainment) are sure to arise. It is unclear whether North American Industry Classification System (NAICS) codes will be used to further identify which businesses fall into these categories. The governor’s reopening process webpage provides little guidance on the categories.

Additionally, the governor’s May 4, 2020 guidance provides a somewhat mixed message on teleworking in counties designated as yellow. One portion of the guidance suggests that businesses currently operating through teleworking arrangements are required to continue to do so, while another portion of the guidance, as well as the governor’s reopening process webpage, provide that businesses need only continue telework arrangements where “possible” or “feasible.”  

Businesses are also sure to have numerous questions about the specific health and safety measures they are required to implement under the governor’s guidance. Businesses should consult with legal counsel to address these questions.