What Pennsylvania’s Mask Order Means For You And Your Business
On April 15, 2020, Pennsylvania Secretary of Health, Dr. Rachel Levine, issued a statewide order concerning the use of face coverings and masks to help prevent the spread of the novel coronavirus, COVID-19. Enforcement of the Order began on Sunday, April 19, and violators could be cited with summary offenses and other consequences such as license suspensions for failure to comply. Many Pennsylvanians have looked for guidance as to what the order mandates, and also whether such an order is even legal and enforceable.
PA Mandatory Mask Rule Only Applies to On-Premises Businesses
Contrary to some beliefs, the Department of Health’s Order does not require individuals to wear masks at all times (although, it is strongly encouraged!). The Order does not apply to walking around your neighborhood, driving in your car, or mowing your lawn. Indeed, the new order itself is much more than just a requirement for masks; the majority of the Order actually imposes requirements on businesses to prepare for the resumption of on-premises work activities and business.
Business Requirements Regarding Masks For Employees and Customers
The Order mandates that employers:
provide masks for employees to wear during their time at the business, and make it a mandatory requirement to wear masks while on the worksite, except to the extent an employee is using break time to eat or drink, in accordance with the guidance from the Department of Health and the CDC. Employers may approve masks obtained or made by employees in accordance with Department of Health guidance. DOH Order, Apr. 15, 2020, Part A(10).
Similarly, businesses are required to have customers/consumers:
wear masks while on-premises, and 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; however, individuals who cannot wear a mask due to a medical condition (including children under the age of 2 years per CDC guidance) may enter the premises and are not required to provide documentation of such medical condition. DOH Order, Apr. 15, 2020, Part B(6).
Summary of Other Requirements for Businesses
As mentioned above, the vast majority of the April 15 Order from PA DOH does not concern masks, but rather makes provisions for how Pennsylvania businesses should protect their employees and customers during the pandemic. For a business that is authorized to conduct in-person or on-premises operations, requirements under the order include, but are not limited to:
- Establishment and adherence to strict cleaning protocols, consistent with CDC recommendations;
- Staggering work start, stop, and break times;
- Mandating social distancing of at least six feet between employees whenever possible and limiting the number of individuals permitted in break and common areas;
- Continuing to conduct telework and virtual meetings when possible;
- Providing employees with access to sufficient cleaning and disinfecting supplies; and
- Prohibiting non-essential visitors from entering the premises.
Additionally, the DOH Order mandates that businesses adopt protocols upon “discovery that the business has been exposed to a person who is a probable or confirmed case of COVID-19,” including:
- Closing off, ventilating, and disinfecting any areas visited by the person;
- Identifying employees in close contact with the individual from 48 hours before symptom onset to the time the individual was isolated;
- Having identified employees follow CDC guidelines for isolation; and
- Implementing temperature screening for all employees
Finally, to protect employees AND consumers, businesses should continue to operate remotely, by pick-up/delivery, by appointment only, or at a capacity of no greater than 50% of the stated occupancy of the property. Further protections include alteration of hours; installation of barriers between cashiers and consumers; rotate and alternate check-out lines; and “wipe down” carts and handbaskets before being made available to customers.
Legality and Enforceability of the Order
Some have questioned whether the DOH Order is legal or enforceable. Various provisions of the Pennsylvania Statutes and Administrative Code mandate that the Department of Health “shall carry out the appropriate control measures in such manner and in such place as is provided by rule or regulation” to assist in preventing the spread of any contagious disease. 35 P.S. § 521.5; see also 71 P.S. § 532 (providing that DOH shall have the power to determine the “most efficient and practical means for the prevention and suppression of disease.”).
Moreover, challenges to the Pennsylvania Supreme Court have been (at least as of the date of this writing) unsuccessful in challenging the Executive’s police and emergency powers during the COVID-19 crisis. On April 13, the PA Supreme Court in Friends of Danny DeVito v. Wolf, held that the Executive has expansive powers in wide circumstances to help protect the health, safety, and well-being of Pennsylvanians during natural disasters. The Court specifically held that pandemics such as COVID-19 can and do fall under the definition of natural disasters. In that light, the Court intimated that the Governor and Secretary of Health have broad discretion to wield the power necessary to protect the public health:
[T]he policy choice in this emergency was for the Governor and the Secretary to make and so long as the means chosen to meet the emergency are reasonably necessary for the purpose of combating the ravages of COVID-19, it is supported by the police power. The choice made by the Respondents was tailored to the nature of the emergency and utilized a recognized tool, business closures, to enforce social distancing to mitigate and suppress the continued spread of COVID-19.
While the DeVito case does not speak to the April 15 DOH Order, the implications of its legality and enforceability are clear: so long as the order is reasonably tailored to assist with the prevention of infectious and contagious diseases, the Order should withstand any legal challenge.
The attorneys of The Lynch Law Group are constantly monitoring the changing landscape as the COVID-19 pandemic continues to evolve. For questions or legal concerns on how the new Order of the Secretary of Health or other governmental agencies may impact your business, please call 724-776-8000.