On March 19, 2020 Pennsylvania Governor Tom Wolf ordered that all non-life sustaining businesses in the Commonwealth close their physical locations unless they receive a waiver, with enforcement to begin Saturday March 21st. There was a lot of confusion and need for clarity after the order, leaving many businesses scrambling to figure out if they had to close down.
The Governor's office then issued clarifying language over the weekend and pushed back the enforcement date to, March 23rd, 2020. The Governor's office issued a further clarification on March 24th, 2020 by updating the list of businesses regarding online businesses and including additional businesses as essential. (See updated chart below)
Under the updated order, the Governor has clarified which businesses have to close and which are deemed "essential."
There are also certain businesses, such as restaurants, which are allowed to remain open for to-go only, and home and commercial building repairs (done by a third-party), which can occur in cases of emergency. We embded the Governor's quick reference list at the end of this blog for businesses and employees to check to see how their work has been classified.
But, the legal question doesn't end at whether or not your business on the list, there are several other factors to consider, which we will examine next.
First, what to do if your business is deemed to be non-life-sustaining and therefore must close physical locations. If a business is non-life-sustaining, that means that the physical location must be closed to the public as well as to employees and all work must be done remotely, if possible.
Note, that some services to a physical locations may continue such as janitorial, pest control, and landscaping services. Physical operations also mean all in-person operations. So if you provide in-person services, those must also be suspended if the business is not listed as permissible. Teleworking is still permitted for non-life-sustaining businesses.
If a business is listed as non-life-sustaining, but the business believes it was incorrectly classified or believes they have a strong need to stay in physical operation due to essential services, the business can apply for a waiver with the Governor's office. That waiver can be found: Here. Note that if a business applies for a waiver, they must continue to stop all physical operations while that waiver is pending.
The next issue is enforcement. The closures required by the Governor's office are enforceable through criminal penalties, under the Disease Control and Prevention Law of 1955 and the Administrative Code of 1929. The Governor has also authorized the following agencies and officials to enforce the order:
Pennsylvania Liquor Control Board
Department of Health
Department of Agriculture
Pennsylvania State Police
Local officials, using their resources to enforce closure orders within their jurisdictions
Under 71 P. S. § 1409 and 35 P.S. § 521.20(a), violations are considered summary offenses punishable by fines and even jail time. It is important that busineses take the order seriously and plan appropriately.
Here are a list of all current business classifications (note the blog continues after):
Additionally here is the link to the Governor's website on this issue, which answers some frequently asked quetions.
Finally, an important note for Pittsburgh-Pittburgh's Paid Sick Leave Law does provide for an employee to take any earned paid sick leave for "closure of the employee’s place of business by order of a public official due to a public health emergency." Therefore, if a business still has employees during this time, an employee can request paid sick leave under the Pittsburgh law.
However, this amount is not required to be paid out if the employee is laid off. It is also improtant to note that the Pittsburgh law does state that if an employee is hired back within six months of a firing or lay-off then the sick leave that was accrued shall be reinstated and can continue to accrue from that point up to the max amount under the ordinance. The ordinance can be found: here.
DISCLAIMER: This blog 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.