Recent Amendments to the Pennsylvania Constitution Foreshadow the End of Statewide COVID-19 Orders in Pennsylvania

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Pennsylvania’s Emergency Management Services Code allows a governor, upon declaring a disaster emergency, to issue orders responding to that emergency.  The power to issue such orders ends either when the governor decides the emergency has passed or the legislature, by concurrent resolution, terminates the state of disaster emergency by two-thirds vote.

At the beginning of the COVID-19 pandemic, on March 6, 2020, Pennsylvania Governor Thomas Wolf issued a “Proclamation of Disaster Emergency,” under which he invoked his authority under the Emergency Management Services Code.  Governor Wolf then issued a series of executive orders in accordance with the Proclamation or subsequent disaster emergency declarations.  For example, on March 19, 2020, he issued an order closing businesses he did not consider “life sustaining.”  Later, he issued several orders (some of which are still in effect) imposing restrictions on Pennsylvania citizens and businesses.  For example, there are still limits on social gatherings (indoor events—50% maximum occupancy, outdoor events—75% maximum occupancy) and individuals not fully vaccinated are still required to wear masks in certain situations, including workplace settings.

In June 2020, the Pennsylvania legislature—many members of which did not agree with Governor Wolf’s decision to shut down “non-life-sustaining” businesses—passed a concurrent resolution directing Governor Wolf to end the disaster emergency.  The legislature did not present this resolution to Governor Wolf, but rather argued that state law permits the legislature to unilaterally terminate a governor’s declaration of emergency.  Governor Wolf disagreed, arguing the resolution was ineffective until presented to him for his approval or veto.  Litigation ensued.

On July 1, 2020, a majority of the Supreme Court of Pennsylvania sided with Governor Wolf, holding the legislature may not unilaterally terminate a governor’s emergency powers by resolution.  Because the resolution was not presented to the governor for his approval or veto, the resolution was void.  Under the Pennsylvania Supreme Court’s holding, Governor Wolf’s COVID-19 orders would remain in effect until he rescinded them, he declared the emergency over, or the legislature passed a veto-proof resolution ending the state of disaster emergency.

In response, the legislature initiated two state constitutional amendments to limit a governor’s emergency powers.  On May 18, 2021, Pennsylvania voters approved these two amendments, making Pennsylvania the first state to amend its constitution to limit its governor’s emergency powers during the COVID-19 pandemic.  The first approved amendment will allow the legislature to end a governor’s disaster emergency declaration with a simple majority vote, instead of the two-thirds vote the law currently demands.  Under the second approved amendment, a governor’s disaster emergency declaration will automatically end after 21 days unless the legislature votes to extend the declaration. (Under the law as it now exists, a disaster emergency declaration lasts 90 days and the governor can extend it indefinitely.)  The amendments take effect when the state certifies the election result, which is expected to occur in early June.

Where do these developments leave employers? 

  • The disaster emergency declaration will likely end by July.  On May 20, 2021, just two days after the approval of the amendments, Governor Wolf extended his disaster emergency declaration for the fifth time.  Once these amendments take effect, however, the legislature may either immediately end the disaster emergency declaration by majority vote, or the disaster emergency declaration will automatically expire after 21 days unless the legislature votes to extend it.   
  • The statewide mask mandate will likely end by July.  Although the Wolf administration recently announced that most COVID-19 restrictions will be lifted on May 31, the statewide mask mandate for individuals not fully vaccinated (consistent with recent CDC guidelines) remains in place.  Masks will likely still be required for non-vaccinated people in the workplace when the amendments take effect, as Pennsylvania announced it will not lift the mask requirement until 70% of Pennsylvanians 18 years and older are fully vaccinated.  (Although vaccinations are becoming more readily available in Pennsylvania, as of May 20, 2021, only 50% of Pennsylvanians 18 years and older have been fully vaccinated.)  Once the disaster emergency declaration on which the mask mandate rests is gone, however, there will no longer be a Pennsylvania-wide mask mandate absent an unlikely action by the state legislature to extend it. 
  • Local orders may continue into July but could be difficult to enforce.  Municipalities may continue implementing their own COVID-19 mitigation efforts after the statewide disaster emergency declaration ends.  These municipalities, however, may have difficulty enforcing mitigation requirements at a local level: such municipalities would have to rely on their own law-enforcement resources, and many people will likely be unaware of mandates that vary from county to county or city to city. 
  • Employers should determine whether local COVID-19 orders govern their workplaces, and be mindful moving forward.  Once the disaster emergency declaration disappears, employers in counties or cities with COVID-19 orders will have to continue following those orders.  Other employers wishing to require masks or distancing should craft their policies with the help of counsel, ensuring that such policies comport with federal and state laws, including laws requiring reasonable accommodations for employees with medical or religious objections to wearing masks. 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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