In rapid succession, Pennsylvania Governor Tom Wolf ordered the closure of all dine-in restaurants and bars in Allegheny, Bucks, Chester, Delaware, and Montgomery counties, then strongly urged all non-essential Pennsylvania businesses to follow suit and voluntarily cease operations for 14 days to help curb the spread of COVID-19. Philadelphia then announced its own sweeping restrictions on commercial activity.

Now, confusion abounds for Pennsylvania employers. This article discusses what employers need to know about facing the current legal issues.

Businesses in Pennsylvania Affected

All restaurants and bars must close their dine-in facilities beginning March 17, according to an official press release from the Governor’s office. Eating and drinking inside restaurants and bars is temporarily prohibited. Such businesses may continue to offer carry-out, delivery, and drive-through food and beverage service.

The Governor has not issued any formal close “order” on a statewide basis. Instead, he has strongly urged that all non-essential businesses voluntarily close for at least 14 days. Non-essential businesses subject to recommended closure include those that are public facing, such as:

• Entertainment, hospitality, and recreation facilities, including, but not limited to, community and recreation centers;
• Gyms, including yoga, barre and spin facilities;
• Hair salons and barber shops, nail salons, and spas;
• Casinos;
• Concert venues;
• Theaters;
• Sporting event venues and golf courses; and
• Retail facilities, including shopping malls, except for pharmacy or other health care facilities within retail operations.

Other businesses (such as legal services, business and management consulting, professional services, and insurance services) are encouraged to have employees work remotely.

Businesses in Philadelphia Affected

Similar to Pennsylvania’s statewide recommendation, Philadelphia Mayor Jim Kenney’s March 16 directive (effective, at least, through March 27) ordered a stop to all non-essential commercial activity and all non-essential government operations. However, the order contains a long list of “essential” businesses permitted to remain open.

The following categories of businesses are deemed “essential” and may remain open:

• Supermarkets and grocery stores
• Big box stores
• Pharmacies
• Discount stores, mini-markets, and non-specialized food stores
• Daycare centers
• Hardware stores
• Gas stations
• Banks
• Post offices
• Laundromats and dry cleaners
• Veterinary clinics for domestic pets and pet stores

Other “essential” businesses are commercial establishments that sell any of the following:

• Frozen products;
• Non-specialized stores of computers, telecommunications equipment, audio and video consumer electronics, household appliances;
• IT and telecommunication equipment;
• Hardware, paint, flat glass;
• Electrical, plumbing and heating material;
• Automotive fuel;
• Domestic fuel;
• Sanitary equipment;
• Personal hygiene products and medication not requiring medical prescription;
• Medical and orthopedic equipment;
• Optics and photography equipment; and
• Soaps and detergents.

Consistent with the statewide restrictions, food establishments in Philadelphia may only accommodate online and phone orders for delivery and pick-up (not dine-in service). All such orders must be placed in advance. Some have reported that any form of in-person ordering, even from a “takeout counter,” is prohibited.

Philadelphia’s new predictive scheduling law, the Fair Workweek Ordinance, will take effect as planned on April 1, 2020. However, pursuant to the Mayor’s March 16 decree, the City’s Office of Benefits and Wage Compliance will suspend enforcement of the law’s “predictability pay” requirement until further notice. Employers are expected to comply with all other portions of the law (for example, advance notice of schedules and posting requirements). For additional information on this ordinance, see our article, Philadelphia City Council Enacts Broad Scheduling Regulations.

Kinds of Businesses that May Continue

The state and local restrictions outlined above appear to apply only to businesses opened to the public. While the Governor has encouraged all employees to work from home as much as possible, there are no restrictions expressly preventing employees from working generally. For example, business owners are not prohibited from visiting their offices or shops, or from maintaining on-site security officers. Businesses engaged in construction or other trades can continue.

The restrictions outlined above are clearly focused on limiting public-facing “commercial” activities.

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COVID-19 will have immediate and long-lasting effects on businesses across Pennsylvania and beyond. The situation remains fluid with constant changes.