The Pennsylvania Secretary of Health issued an Order on April 15 imposing significant additional “safety measures” on life-sustaining businesses that have been permitted to maintain in-person operations during the coronavirus COVID-19 pandemic. The Order might also be a preview of requirements that may be more broadly implemented in connection with an eventual general reopening of businesses in the Commonwealth. The order is available here.

The Order requires all businesses authorized to maintain in-person operations to implement specific “distancing, mitigation and cleaning protocols” by 8:00 p.m. on Sunday, April 19. These protocols include an obligation to “provide masks for employees” and to “make it a mandatory requirement to wear masks while on the work site.”

The Order covers three areas: (1) protocols for day-to-day operations by all life-sustaining businesses; (2) specific protocols life-sustaining businesses must follow upon exposure to a person with a probable or confirmed case of COVID-19; and (3) additional protocols for life-sustaining businesses, other than healthcare providers, that serve the public within a building or defined area.

FIRST, with respect to day-to-day operations, the Order requires businesses to:

1. 1. Clean and disinfect high-touch areas routinely in accordance with guidelines issued by the Centers for Disease Control (“CDC”), in spaces that are accessible to customers, tenants, or other individuals;
   2. Maintain pre-existing cleaning protocols for areas that are not accessible to customers, tenants, or other individuals;
   3. Stagger work start and stop times, when practicable, to avoid large gatherings of employees;
   4. Provide a sufficient amount of space for employees to have breaks and meals while maintaining a social distance of six feet, while arranging seating to have employees facing forward and not across each other in eating and break settings;
   5. Stagger employee break times to reduce the number of employees on break at any given time so that appropriate social distancing may be followed;
   6. Limit persons in employee common areas (such as locker or break rooms, dining facilities, and training or conference rooms) at any one time to the number of employees that can maintain a social distance of six feet;
   7. To the extent possible, conduct meetings virtually. If a meeting must be held in person, no more than 10 employees should attend;
   8. Provide access to regular handwashing with soap, hand sanitizer, and disinfectant wipes and require regular cleaning;
   9. Provide masks for employees and require that they be worn during their time at the business, and make it a mandatory requirement to wear masks while on the work site;
   10. Ensure that the business’s facility has a sufficient number of personnel to control access, maintain order, and enforce the social distancing of at least six feet; and
   11. Prohibit non-essential visitors from entering the premises of the business.

SECOND, the Order requires life-sustaining businesses to establish protocols for execution upon discovery that the business has been exposed to a person with a “probable” (not defined in the Order) or confirmed case of COVID-19. These protocols should include:

1. 1. Closing off areas visited by the person, as well as opening outside doors and windows and using ventilation fans to increase air circulation in the area, and then waiting a minimum of 24 hours thereafter, or as long as practical, before beginning cleaning and disinfection;
   2. Conducting contact tracing by identifying and notifying employees who were in close contact (defined as within six feet for about 10 minutes) with the person from the period 48 hours before symptom onset to the time at which the patient self-isolated, requiring asymptomatic contacts to adhere to the guidelines set out by the CDC on April 8 (See Implementing Safety Practices for Critical Infrastructure Workers Who May Have Had Exposure to a Person with Suspected or Confirmed COVID-19), and sending home immediately contacts who become sick during the work day;
   3. Implementing temperature screening before employees enter the business at the start of the work day (with social distancing during the screening process) and sending home any employee who records a temperature of 100.4 degrees or higher;
   4. Advising employees who have symptoms (i.e., fever, cough, or shortness of breath) to notify their supervisor and stay home; and
   5. Notifying sick employees that they should follow CDC-recommended steps and should not return to work until the CDC criteria to discontinue home isolation are met, in consultation with healthcare providers and state and local health departments.

THIRD, the Order contains additional directives to businesses that serve the public within a building or defined area, such as grocery stores, drug stores, and other essential retail businesses. These protocols include (1) limiting occupancy to no more than 50 percent of store capacity; (2) enforcing social distancing requirements (and installing signage regarding those requirements); (3) installing shields or other barriers to protect check-out personnel; (4) requiring customers to wear masks and denying entry to customers without masks (unless a customer cannot wear a mask due to a medical condition); (5) designating a specific time, at least once per week, for high-risk and elderly persons to use the business; (6) rotating the use of cash registers to permit hourly disinfecting; (7) scheduling hourly handwashing breaks for employees; (8) encouraging use of online ordering by providing delivery or pick-up options; and (9) where carts and handbaskets are available for customers’ use, assigning an employee to wipe down carts and handbaskets before they become available to each customer entering the premises.

The Order was effective on April 15 and, while not containing an enforcement mechanism, is “enforceable as of 8:00 p.m. on Sunday, April 19.”