Updated 5/29/2020
Just when you thought you might be starting to get a handle on Pennsylvania’s COVID-19 restrictions, 13 more counties, including Allegheny County, have moved to “yellow” - a new phase in Governor Tom Wolf’s plan to reopen the state. So, what does this mean? And what does this mean for your business? What legal protections should you have in place as we move to reopening Pennsylvania? Have no fear - Trellis is here to help you make some sense of it all. (You know, to the extent we can. We are lawyers, not fortune tellers over here.)
Red, Yellow, Green - What Does It Mean?
I am sure you have been hearing a lot about Governor Wolf’s three-phased process to reopen Pennsylvania. According to the Governor’s website, his office has been working closely with several governmental agencies and organizations, including the Pennsylvania Department of Health, the Pennsylvania Emergency Management Agency, the Department of Community and Economic Development, and the Department of Labor & Industry, as well as Carnegie Mellon University, to undertake a data-driven approach to reopening that balances public health and economic needs.
What does that mean for us? It means Pennsylvania will reopen in phases - red, yellow, and green - according to risk. Each phase has a different level of Work & Congregate Setting Restrictions and Social Restrictions, as discussed below.
Red
There are still several counties in the red phase. However, the red phase will be lifted for all counties on June 5th. This means that only life-sustaining businesses are allowed to open, large gatherings are prohibited, and restaurants and bars that can be open are limited to carry out or delivery.
Yellow
What does it mean to move from “red” to “yellow”? Telework is still advised where possible, so if in person operations are not required for your business things gotta stay remote. Businesses with in-person operations must follow building and business safety guidance (e.g. disinfecting and face mask guidelines). There is also specific guidance for restaurants in the yellow and green phase. Gatherings are still restricted to under 25 people.
All bars and restaurants may be open for takeout and delivery as well as outdoor dining at 50% occupancy permit capacity or capacity in which social distancing can be maintained. Retail operations can be open but must limit the number of people allowed in the store to 50% capacity or by appointment only. Gyms, spas, nail salons, massage therapy, theaters, and casinos must all stay closed. Remember though - just because you can be open doesn’t mean you have to be, you still can make the choice that you feel is best for your business, your customers, and you.
Green
Under “green”, we move into our new normal. Some additional social restrictions are lifted and almost all businesses are allowed to go back to in-person operations. On May 27th, Gov. Wolf provided additional guidance in regards to green phase operations. Businesses serving the public that were allowed to operate under "yellow" may operate at 75% of the occupancy permitted under their occupancy permit, and those who are now only permitted under "green" may operate at 50% occupancy. Personal care services, including hair salons and barber shops also must operate by appointment only; appointments or reservations are also strongly encouraged for gyms or spas.
For restaurants, the Governor has provided specific guidance on bar seating, stating that bar seating may be utilized if customers are seated and comply with physical distancing guideline of at least 6 feet or physical barriers between customers. Standing in a bar area will not be permitted. A maximum of four customers that have a common relationship may sit together at the bar, while adhering to the physical distancing guidelines or barriers between other customers.
In regards to social and religious operations any gathering for a planned or spontaneous event of greater than 250 individuals is prohibited. This includes, but is not limited to, a concert, festival, fair, conference, sporting event, movie showing, or theater performance. Churches, synagogues, temples, mosques and other places of congregate worship are specifically excluded from the limitations established by the order. These institutions are strongly encouraged to enforce social distancing and other mitigation measures such as masking at their gatherings.
All businesses and individuals must follow applicable CDC, PA Dept of Health, and local guidance. Clarification guidance from Governor Wolf related to yellow and green phases can be found: HERE.
And remember, you as an employer choose when you want to open. Under the green phase employers have a lot more discretion in how they wish to operate, but it is advised that you think of public safety and best practices when making your decision.
My County Is Reopening-Now What?
This is the question, isn’t it? If you are a small business owner that has been closed or modified your operations during this time, the first thing to do is to review what the remaining restrictions on your business are. Then, it’s time to decide if opening is the right decision for your business and start looking at how you can safely reopen your operations and shore up your legal protections. Be sure to check the CDC, OSHA, PA DCED, and the Pennsylvania Department of Health for the best guidance on how to reopen and promote the health and safety of you, your employees, and your customers.
If you are not on the list of businesses that can reopen in your county’s phase you can continue to prepare for when you can be open by staying on top of guidance and recommendations.
When re-starting in-person operations, there are several legal protections you may want to consider. First, if you are changing your operations due to COVID-19 safety concerns (e.g. requiring more frequent hand-washing or the use of face masks while on your premises, etc.), you may want to draft an employee policy that puts your employees on notice of the changes you are making so everyone is on the same page and gives you the ability to take disciplinary action if employees are not following the safety rules.
It is especially important during these times to ensure everyone is consistently following protocol and that you have the ability to make changes to ensure the safety of everyone. You may also want to include an understanding of the risks of working during COVID19 and that employees understand those risks. But remember- you have a duty to make sure you are taking reasonable measures for protection (following guidance, etc.) and not asking employees to work in violation of the applicable laws and orders or you could be at risk for liability.
PA is also requiring employers to designate a "Pandemic Safety Officer" in order to have a point person for ensuring the protocols are being followed and answer questions related to the protocols. Employers must post a poster at the place of work that details the required actions under the PA Secretary of Health's order and lists the Pandemic Safety Officer. That poster can be found: HERE.
In regards to sick leave, employers will likely want to include a, or amend your, sick leave policy that accounts for the Families First Coronavirus Response Act requirements as employers have to provide additional paid sick leave and Family Medical Leave Act protections related to COVID19. Clarification has been given that these requirements and protections do apply to small businesses with under 50 employees, but those businesses do not have to provide leave related to care of a child if it would jeopardize the viability of the business (based on certain set factors).
See these US Department of Labor webinar slides and our updated March 20th blog for more info. If you are in the City of Pittsburgh, or have employees that work within the City of Pittsburgh, you also need to make sure your general paid sick leave policy complies with Pittsburgh's Paid Sick Leave Ordinance which became effective March 15, 2020. Guidelines for that can be found: Here.
We break down paid sick leave considerations in an IGTV video too so head to @trellispgh on instagram to check that out and our friends at Farm Commons made a great graphic breaking down Federal Paid Sick Leave which you can download for free: Here (graphic targeted to farmers but law applies to all employers). Both sick leave requirements (PGH and Federal) include the need for employers to post notices. Those can be found Here for Pittsburgh's ordinance, and Here for the Families First Coronavirus Response Act.
Next, check your existing client agreements. If you do not already have one, you will want to add an addendum that specifically addresses what happens in the event COVID-19 interferes (or interferes further) with your ability to provide the services in the agreement or vise versa. In certain contracts, you may already have provisions that account for if you can’t perform, but if not, or you want to make it crystal clear, you want to have good language drafted. This is especially true in case your area gets reverted back to a more restrictive phase (such as yellow to red) and you are no longer allowed to operate. You can either draft an inclusive contract if you are drafting a new contract, or have a COVID-19 addendum and waiver, as discussed below.
If you will be providing catering services or providing in person activities where you have less control over the safety of the environment, it is also worth considering a COVID-19 waiver for your clients, customers, or volunteers (if you are a non-profit). You need people to understand that despite you taking reasonable precautions you cannot guarantee there is no risk of COVID19 spread and that the client or volunteer is accepting the risk of bringing people together and being around others. You will want in writing that the customers willingly assume that risk and agree not to hold you, your business/non-profit, or your employees responsible in the event someone at their event contracts COVID-19.
Conclusion
Whew. That is a lot. We are feeling it. We are sure you are feeling it too. If you are feeling confused or unsure - just know you are not alone. There are a lot of moving parts to this. And - we can’t guarantee these are all the considerations, but we wanted to give you the basics to help you in your decision to open or how to open. If you choose not to re-open for a while, that’s ok too. There is not a mandate to reopen and your employees are allowed to stay on unemployment until you offer them their jobs back. Also check out the Governor’s FAQs for businesses at each phase for more guidance.
In the meantime, keep checking health and safety guidance from federal, state, and local authorities. Take the legal steps to protect yourself, your business, and your employees. And please, drop us a line if you have questions! We are here to help. We will all get through this together.
DISCLAIMER: This blog post is meant for informational purposes only and does not constitute specific legal advice or create an attorney-client relationship. Readers should discuss their specific situation with an attorney.