Pennsylvania Grants Waivers Allowing Non-‘Life-Sustaining’ Businesses To Resume Operations

On March 19, 2020, Governor Tom Wolf ordered all Pennsylvania businesses that are not considered “life-sustaining” to shut down their physical operations by March 21 at 12:01 a.m., which was later amended to March 23, 2020 at 8 a.m..¹ Governor Wolf’s order will remain in effect until further notice. Although there are several industries that are listed as non-life sustaining, the Pennsylvania Department of Community and Economic Development (DCED), has granted several waivers permitting specific businesses in industries that are not life sustaining to continue operating. For example, although construction companies generally must cease construction, they are permitted to construct health care facilities and conduct emergency repairs.

What Operations May Be Eligible for Waivers?

The DCED is granting waivers for non “life-sustaining” businesses that provide goods or services necessary to maintain operations of a business on the life-sustaining list or one of the critical infrastructures identified in the Department of Homeland Security’s Cybersecurity and Infrastructure Security Agency (CISA Advisory). The CISA Advisory authorizes in-person activity by businesses and workers for the following critical infrastructure categories:

• materials and products needed for medical supply chains.
• essential transportation.
• energy.
• essential communications.
• food and agriculture.
• chemical manufacturing.
• the operation of dams, water and wastewater treatment.
• emergency services.
• the defense industrial base.

Since March 19, the DCED has issued a list of FAQs and granted several waivers. As an illustration of a granted waiver, on March 20, 2020, a construction company involved in various pipeline and related infrastructure projects in Pennsylvania, applied for six waivers in order to continue construction on certain projects based on security, environmental and safety concerns. One of the safety and environmental concerns cited by the construction company was the collapse of boreholes, which it argued could raise both environmental and safety concerns. The company submitted an email from the Pennsylvania Department of Environmental Protection agreeing that it should continue its environmental remediation work. The company agreed that it would follow Centers for Disease Control and Prevention (CDC) and Occupational Safety and Health Administration (OSHA) guidelines (for instance, implementing social distancing and hygiene practices, among other measures) at its sites if the waivers were granted. On March 25, 2020, the construction company announced that it received approval from DCED to continue construction on the projects it submitted the waivers for.

How to Apply for a Waiver

Businesses seeking to obtain a waiver/exemption may submit one with the DCED via email at RA-dcexemption@pa.gov or online via the portal. The waiver request should include a detailed narrative demonstrating:

1. why your business activity is a part of the supply chain identified in the CISA Advisory, if applicable.
2. your business’s role in the supply chain of goods or services.
3. the category of critical infrastructure or life-sustaining business which you provide goods or services to and the extent of your business activity related to that category.
4. the total number of employees and the number of employees who will be working in an office or physical location to perform the critical work.
5. specific examples of critical or life-sustaining infrastructure businesses or sectors with which your business has contracts.
6. your plan for meeting CDC guidelines for maintaining employee safety.

Importantly, while your business is waiting for a response, it must continue to comply with Governor Wolf’s shutdown order. The timeline to receive a response to a waiver request is not clear. If your business is thinking about applying for a waiver, it should do so as soon as possible.

If the DCED grants your business a waiver, you must:

1. comply with the limits of the waiver.
2. adhere to social distancing requirements.
3. prohibit gatherings over 10 people.
4. comply with the COVID-19 mitigation guidance provided by the Pennsylvania Department of Health and CDC.
5. The list explaining which businesses are allowed to remain open and which ones must shut down their physical locations is being updated periodically, thus, it is important to check the list regularly.