Legal Alert

UPDATED: Pennsylvania Department of Health Secretary Mandates New COVID-19 Workplace Protocols

May 19, 2020

On April 15, 2020, Governor Tom Wolf announced that Dr. Rachel Levine, under her authority as Pennsylvania Secretary of the Department of Health, signed an Order directing that additional protections be put in place for critical workers employed at Pennsylvania businesses that are authorized to continue in-person operations, other than health care providers, during the COVID-19 disaster emergency. The Order does not apply to state employees.

The Order became effective immediately upon Dr. Levine’s signature and became enforceable at 8 p.m. on April 19, 2020. It instructs covered businesses authorized to maintain in-person operations to implement a number of social distancing, mitigation, and cleaning protocols. The Department of Health has also issued FAQs instructing covered businesses on the implementation of the Order. The Department has plans to create a form for employees to report violations on its website.

Use of Masks or Face Coverings

Most notably, covered businesses are instructed to provide masks for employees to wear and make it a mandatory requirement for employees to wear masks while on the work site, except to the extent that an employee is using break time to eat or drink, in accordance with the guidance from the Department of Health and the CDC. The CDC advises that cloth face coverings should not be placed on children younger than two years of age, anyone who has trouble breathing, or is unconscious, incapacitated, or otherwise unable to remove the cover without assistance. The FAQs clarify that a disposable face shield will suffice in lieu of a mask, and that employees do not need to wear masks if doing so would impede their vision, if they have a medical condition, or if wearing a mask would create an unsafe condition in which to operate equipment or execute a task. Employees isolated in their personal office spaces that are not shared with any other colleagues do not need to wear a mask. However, when the employee leaves their office or invites another colleague in, they must wear a mask. There is no exemption to the mandatory mask requirement for businesses where social distancing can be maintained.

Employers should routinely check this guidance for best practices on the use of masks and other facial coverings.

Employers may approve masks obtained or made by employees in accordance with the Department of Health’s Guidance on Homemade Masks during COVID-19, which recommends masks made from two layers of tightly woven, 100% cotton that fit snugly around the face. Masks should be discarded or washed after every use. The guidance advises against purchasing masks designed for health care professionals.

For businesses that serve the public within a building or a defined area, they must require all customers to wear masks while on the premises. Moreover, businesses are directed to deny entry to individuals not wearing masks, unless the business is providing medication, medical supplies, or food, in which case the business must provide alternative methods of pick-up or delivery of such goods, such as home delivery or contactless curbside pick-up. Exceptions exist for individuals who cannot wear a mask due to a medical condition or children under the age of two. Documentation of the medical condition is not required.

The FAQs suggest that businesses should consider providing masks to their customers or offering resources to customers on how to make masks.

Employee Protocols

In addition to face coverings, the Department of Health Order includes a lengthy list of protocols that covered businesses must follow, including the following: 

  • Maintain pre-existing cleaning protocols to clean and disinfect all areas of the building, and routinely clean and disinfect high-touch areas, in accordance with guidelines issued by the Centers for Disease Control and Prevention (CDC).
  • Provide employees with access to regular handwashing with soap, hand sanitizer, and disinfectant wipes.
  • Stagger work start and stop times when practicable to prevent employees from gathering in large groups.
  • Provide a sufficient amount of space for employees to have breaks and meals while maintaining a social distance of six feet and limit the number of persons in employee common areas to the number of employees that can maintain a social distance of six feet.
  • Stagger employee break times to reduce the number of employees on break at any given time.
  • Conduct meetings and trainings virtually (e.g., by phone or through the internet) and, if a meeting must be held in person, limit the meeting to as few employees as possible, not to exceed 10 employees.
  • Prohibit non-essential visitors from entering the premises of the business.

Customer Protocols

The Order also contains mandatory actions that must be taken by businesses that serve the public within a building or a defined area. In addition to the face covering protocols above, the following additional protocols are required: 

  • Where feasible, conduct business by appointment only. If appointments are not feasible, such businesses must limit occupancy to no greater than 50 percent of the number stated on the applicable certificate of occupancy at any given time. A social distance of six feet at check-out and counter lines must also be maintained, and signage must be placed mandating social distancing for both customers and employees.
  • Install shields or other barriers at registers to physically separate cashiers from customers or take other measures to ensure social distancing of customers from check-out personnel.
  • In businesses with multiple check-out lines, use only every other register, or fewer. After every hour, rotate customers and employees to the previously closed registers and clean the previously open registers and surrounding areas following each rotation.
  • Designate a specific time for high-risk or elderly persons to use the business at least once per week if there is a continuing, in-person, customer-facing component.
  • Schedule handwashing breaks for employees at least every hour.
  • Alter hours so that the business has sufficient time to clean, restock, or both, based on the building size and number of employees.
  • Where carts and handbaskets are available for customers’ use, assign an employee to wipe down carts and handbaskets before they become available to each customer.

Probable or Confirmed Exposure Protocols

In addition, the Order instructs businesses to implement a protocol to be executed upon discovery that the business has been exposed to a person who is a probable or confirmed case of COVID-19. The FAQs explain that a person is considered to have a probable case of COVID-19 if the person has appropriate symptoms (e.g., fever, cough, shortness of breath) and exposure to a high-risk situation, or if the person has a positive antibody test and either symptoms or high-risk exposure. The following are among the required measures: 

  • Close off the areas visited by the probable or infected individual.
  • Open outside doors and windows and use ventilation fans to increase air circulation.
  • Wait a minimum of 24 hours (or as long as practical) before beginning cleaning and disinfection.
  • Identify employees that were in close contact (defined as within approximately six feet for about 10 minutes) with the individual from the period 48 hours prior to symptom onset through the time at which the individual isolated. 
  • Promptly notify identified employees of any known exposure to COVID-19 consistent with applicable confidentiality laws. Identified employees should adhere to the practices set out in the CDC Interim Guidance issued on April 8, 2020.
  • Implement temperature screening for all employees before they enter the business prior to the start of each shift, or before employees start work, and ensure employees practice social distancing while waiting to have their temperatures screened. Temperature checks may not be completed through self-screening (e.g., employees told to take their temperatures at home). However, the temperature screenings may be administered by an individual who is not a medical professional. Temperature checks should be conducted for at least 14 days after an exposure, but the Department recommends that employers in areas of the Commonwealth with high positive case numbers continue to conduct temperature checks as a matter of routine. The Order does not require that non-employees be subject to temperature checks.
  • Send home employees with an elevated temperature or fever of 100.4 degrees Fahrenheit or higher.

Workforce Notifications

The Order requires that employers make their employees aware of all required procedures and protocols through oral or written communications, in their native or preferred language, as well as in English.  While not addressed in the Order, it seems clear that managers and supervisors will need training on the content of the Order’s requirements, the protocols adopted by the employer, and the expectation that the protocols will be enforced with disciplinary consequences for non-compliance. 

Staffing Requirements

Employers subject to the Order must ensure they employ a sufficient number of employees to perform all required protocols effectively and in a manner that ensures the safety of the public an employees. In addition, the employer must ensure that its facilities have sufficient personnel to control access, maintain order, and enforce social distancing of at least six feet.

Finally, the FAQs state that employers and employees will not be reimbursed through public funds for any costs associated with complying with the Order.

The attorneys in Ballard Spahr’s Labor and Employment Group are monitoring closely the executive and public health orders being issues around the country and can assist employers in taking compliance measures. To view other Pennsylvania orders, or orders adopted in other states around the nation, please visit our State Legislative Tracker

Copyright © 2020 by Ballard Spahr LLP.
(No claim to original U.S. government material.)

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This alert is a periodic publication of Ballard Spahr LLP and is intended to notify recipients of new developments in the law. It should not be construed as legal advice or legal opinion on any specific facts or circumstances. The contents are intended for general informational purposes only, and you are urged to consult your own attorney concerning your situation and specific legal questions you have.

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