On Wednesday, April 15, Pennsylvania Governor Tom Wolf, in conjunction with the state’s Department of Health, announced a new Order requiring businesses to implement new safety measures in response to the coronavirus pandemic. The Order details a litany of new “social distancing, mitigation, and cleaning protocols” that businesses must observe with respect to both employees and customers. Effective immediately and enforceable beginning April 19 at 8 p.m., the Order applies to “life-sustaining businesses” authorized to maintain operations during the crisis under a prior order issued in March, including grocery stores and pharmacies. The Governor has directed a number of state agencies to enforce the new requirements, including the Department of Labor & Industry, the Department of Health, and the Pennsylvania State Police.

Among the new obligations, employees will be required to wear masks at all times, except when eating during break times. Employers may approve masks “obtained or made by employees in accordance with Department of Health Guidance,” but otherwise, employers must provide masks to employees who do not have their own. In addition, employees must be provided with ample space to maintain a social distance of six feet during meals and breaks, and the number of employees congregating in common areas must be limited in general. All employee meetings and training sessions should be conducted virtually, if possible. Necessary in-person meetings should be conducted with the fewest number of employees possible, and in-person meetings of more than 10 employees at once are prohibited. The Order also directs employers to implement staggered work shifts “when practicable” to prevent large groups of workers from entering or leaving work at the same time, and to require employees to wash their hands at least once every hour they are on-site.

There are a number of actions an employer must take upon discovering that its employees may have been exposed to a person infected by the COVID-19 virus, including closing off and ventilating the area where the exposure occurred for 24 hours, after which it must be thoroughly cleaned and disinfected. Furthermore, employers are obligated to conduct temperature screenings prior to the start of each work shift in the event of a potential exposure, and employees with a temperature of 100.4 degrees or higher must be sent home. Employers must identify and promptly notify employees who potentially were exposed, and employees who become sick must be sent home immediately. Exposed but asymptomatic employees should follow 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.” The Order also directs employees who have symptoms to notify their employer and stay home.

With regard to the public-facing measures under the Order, businesses must prohibit all “non-essential visitors” from entering the premises. Otherwise, businesses must require customers to wear masks, unless the business provides essentials such as medical supplies or food. In that case, businesses must implement alternate methods, such as delivery or pick-up, for providing such essential products and services. The Order strongly encourages companies to conduct business by appointment only whenever feasible. If not, businesses must limit the number of customers on-site at any given time to 50% of the number stated on the company’s certificate of occupancy, and a social distance of 6 feet must be maintained throughout the premises, including at all customer check-out areas or counter lines. For those areas, businesses also are required to install shields or barriers to physically separate employees from customers. Other suggested measures include changes to business hours to allow for sufficient cleaning, as well as designated shopping hours for elderly customers or other customers with elevated risk due to pre-existing health conditions.

While the details of the Order are specific and clear, in practice, employers may struggle to comply by the effective date. Many Pennsylvania employers have implemented a number of the above measures already, but for those who have not yet done so, the imminent deadline means that many employers will need to move fast to avoid potential enforcement action by one of the state agencies authorized by the Governor to address violations. Given that many businesses have furloughed or laid off a significant number of their employees over the last several weeks, it may be challenging for some to 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, as required by the Order. For example, retail businesses with multiple cashier lines must immediately install barriers to separate cashiers from customers—a daunting task to complete under such a short deadline in the best of times, much less when the supplies or personnel necessary to do such work may be unavailable.

Regarding other obligations under the Order, requiring employers to provide masks to employees who do not have their own could be challenging in light of supply shortages, particularly for businesses with a large number of workers. Moreover, employers operating in facilities with limited space may find it difficult to provide for adequate social distancing, and with the prospect of financial penalties on the horizon for failure to do so, already-struggling businesses must now resolve these issues on an accelerated timeline. Also, some employers may face logistical challenges in implementing pre-shift temperature checks in the event of a potential workplace exposure. Given that the federal government has issued guidance in response to COVID-19 relaxing the restriction on employee medical exams under the Americans with Disabilities Act, employers will not be liable for conducting employee temperature checks. Instead, Pennsylvania employers could be liable for not conducting a previously prohibited medical exam—yet another example of how the coronavirus pandemic has turned the world upside down for many employers.

Regardless of the challenges arising from the above, employers in Pennsylvania should take immediate action to meet these additional requirements under the Order, not only to avoid liability, but also to mitigate the risk of exposure for employees and customers. Employers should identify the areas in which changes must be made and quickly develop plans and procedures to ensure compliance. Employers may wish to consult with legal counsel now to assess potential liability and develop solutions, particularly where specific circumstances make compliance by the effective date of the Order extremely challenging.