By Drew G. Miller, Esq.

Posted:  June 5, 2020

Sixteen counties, including Allegheny, Butler, Fayette, Washington and Westmoreland, have moved to the “green” phase, the least restrictive phase of Governor Tom Wolf’s plan to reopen Pennsylvania in response to the COVID-19 pandemic.[1]

So what does it mean for Pennsylvania businesses to go green?  Here are some guidelines to help business owners navigate this “new normal.”

Gov. Wolf repeatedly has reminded Pennsylvania residents that life as we knew it – even in the “green” phase – likely will not return to normal until COVID-19 is eradicated.  “I must emphasize that moving into the green phase will still require precautions to keep our communities and our families safe,” he stated.  “Covid-19 continues to be a threat and, unfortunately, that won’t change until we have a vaccine or a cure.”[2]

Gov. Wolf first allowed 18 counties to move to “green” on May 29.  Under this Order, dated May 27, he stated:

“All businesses, other than health care providers…may conduct in-person business operations, provided that the businesses fully comply with all substantive aspects of [previous Orders from the Secretary of Health and guidance from the Wolf Administration, the Department of Health (DOH) and Centers for Disease Control and Prevention (CDC), and all existing and future applicable guidance issued by the Wolf Administration]” (emphasis added).[3]

The governor further stated in his Order that “teleworking remains strongly encouraged” and that “businesses are also strongly encouraged to stagger the return of employees to in-person operations.”

You can read Gov. Wolf’s May 27 Order, laying out the green-phase requirements, here:   https://www.governor.pa.gov/wp-content/uploads/2020/05/20200527-TWW-green-phase-order.pdf.

On June 4, Gov. Wolf amended his May 27 Order to add the following sixteen counties to the “green” phase effective June 5 at 12:01 a.m.:  Allegheny, Armstrong, Bedford, Blair, Butler, Cambria, Clinton, Fayette, Fulton, Greene, Indiana, Lycoming, Mercer, Somerset, Washington, and Westmoreland.

Here are highlights of the mandates for business owners in the “green” phase:

For the Public:

  • No gatherings greater than 250 people for a planned or spontaneous event.
  • Includes, but is not limited to, a concert, fair, festival, conference, sporting event, movie showing, or theater performance.

For Businesses Generally:

As noted in the governor’s May 27 Order, businesses must comply with all substantive aspects of all existing and future guidance from his administration.  One such piece of guidance is his “Guidance for Businesses Permitted to Operate During the COVID-19 Disaster Emergency to Ensure the Safety and Health of Employees and the Public” (Business Guidance) issued May 4, 2020, and updated June 1, 2020, a copy of which can be found here: https://www.governor.pa.gov/wp-content/uploads/2020/06/20200504-COVID-19-Business-Guidance.pdf.

The Business Guidance states that “all businesses conducting in-person operations as permitted in each respective Phase must do the following.” (emphasis added).  While not an exhaustive list, some of those requirements for businesses include, but are not limited to:

In a previous article, we wrote extensively about what business owners must do to protect their employees; what their plans, if exposure to COVID-19 occurs, must include; and what they must do to protect the public – all of which are still applicable during the ”green” phase.  To view this article, please go here: https://palawfirm.com/yellow-does-not-mean-business-as-usual-in-pennsylvania/

Although the Business Guidance states that businesses must require all customers to wear a mask, recent comments by Gov. Wolf concerning the ”green” phase appear to contradict these guidelines.  For example, Gov. Wolf said at a press conference, “Residents of green-phase counties are encouraged to continue wearing masks in public spaces and to follow physical distancing measures, like staying six feet apart” (emphasis added), which could lead people to believe that wearing a mask in public is a suggestion rather than a requirement. Conversely, when asked about wearing a mask in the ”green” phase, Allegheny County Executive Rich Fitzgerald said, “The mask situation has not changed.  People still have to wear their masks — businesses for their own benefit, for employees, for customers. I can’t imagine any businesses would want to get a reputation of being unsafe, an unsafe place to go shop or to go dine because people aren’t wearing masks.”[4]

All Businesses Operating within a Building or Defined Area that Were Permitted to Conduct In-Person Operations Under the Governor’s Previous “Yellow Phase” Order:[5]

  • May now operate at 75% of the maximum capacity stated on the certificate of occupancy.
  • Must still enforce social distancing requirements. NOTE: This may limit occupancy below the 75% maximum capacity.

All Businesses Operating within a Building or Defined Area, that Were NOT Permitted to Conduct In-Person Operations Under the Governor’s Previous “Yellow Phase” Order:[6]

  • May operate at 50% of the maximum capacity stated on the certificate of occupancy.
  • Must still enforce stoical distancing requirements. NOTE:  This may limit occupancy below the 50% maximum capacity.

Restaurants and Bars:[7]

  • May conduct in-person operations
  • Ensure maximum occupancy limits for indoor and outdoor areas are posted and strictly enforced. The more restrictive of the following numbers must be used:
    • Method 1: Limit to 50% of stated fire capacity or 12 people per 1,000 square feet.
    • Method 2: Arrange restaurant so that customers sitting at a table are not within six feet of any customers sitting at another table in any direction and calculate the maximum number of customers that can be accommodated.
  • Must adhere to the Administration’s “Guidance for Businesses in the Restaurant Industry Permitted to Operate During the COVID-19 Disaster Emergency to Ensure the Safety and Health of Employees and the Public” (Restaurant Guidance) issued May 27, 2020, which can be found here:

https://www.governor.pa.gov/wp-content/uploads/2020/05/20200527-Restaurant-Industry-Guidance.pdf

  • Must provide at least six feet between parties at tables.
  • Bar seating may be utilized, but all customers must be seated and must maintain 6 feet of social distancing or have a physical barrier between the customers.
  • Standing in a bar area is NOT
  • A maximum of four customers that “have a common relationship” may sit together at the bar.
  • Limit the number of employees in shared spaces.

Special Exceptions for Restaurants in Yellow-Phase Counties:

  • For restaurants in the ”yellow”-phase counties, Gov. Wolf is allowing dine-in service in outdoor seating areas so long as the restaurants strictly adhere to the requirements of the Restaurant Guidance, including the maximum occupancy limit.
  • Indoor areas, including bar areas, must be closed to customers, except for through-traffic.
  • Non-bar seating in outdoor areas is permitted.
  • Customers must be seated at a table.

Hair Salons and Barbershops and Other Personal Care Businesses:[8]

  • Must operate by appointment only.
  • Must operate under the 50% occupancy limit of Section 1(D) of the governor’s Order.

All Other Personal Care/Health and Wellness Services:[9]

  • Appointments or reservations are “strongly encouraged” for all indoor recreation and health and wellness facilities such as gyms or spas, and all other businesses where feasible.
  • Must operate under the 50% occupancy limit of Section 1(D) of the governor’s Order.

Casinos, Theaters, Shopping Malls and Indoor Entertainment:[10]

  • Open at 50% occupancy.
  • Enforce social distancing requirements.

Construction Activity:[11]

  • May return to full capacity with continued implementation of protocols.

Places of Worship:[12]

  • “Specifically excluded from the limitations established by [Gov Wolf’s] Order.”
  • Strongly encouraged to enforce social distancing and other mitigation measures like masking at their gatherings.

Hospitals and Prisons:[13]

  • Visitation may resume.
  • Individual facilities may limit visitation.
  • Visitors must be diligent regarding hygiene.

Nursing Homes:

  • Visitation restrictions will initially remain in place.

Summer Camps and Pools:[14]

NOTE: Although pools will be allowed to reopen, many Pittsburgh pools are remaining closed.[15]

Professional Sports:[16]

  • Professional sports are allowed to practice or play without on-site or venue spectators if the team has developed a COVID-19 safety plan.
  • The safety plan must be approved by the Pennsylvania Department of Health and include, among other requirements, testing or screening and monitoring of all on-venue players and personnel. Also, no fans or spectators may be permitted on interior or exterior venue property.

The governor also notes that no business is required to resume in-person operations if the business feels it is unable to mitigate the risk of COVID-19 exposure.

The following is a press release from the governor’s office summarizing the green-phase requirements: https://www.governor.pa.gov/newsroom/reopening-phase-orders-updated-to-include-10-additional-counties-moving-to-yellow-and-16-to-green-on-june-5/

 

For more information about legal issues facing you and your business in connection with the coronavirus pandemic, contact the attorneys at Anderson & Labovitz, LLC at (412) 209-3200.  Or you can email our attorneys – Adam Anderson (aanderson@palawfirm.com), Bill Labovitz (wlabovitz@palawfirm.com) and Drew Miller (dmiller@palawfirm.com).  For more information about our firm, visit our website at www.palawfirm.com.  

 

[1] Additionally, all counties that were previously in the “red” phase, including Philadelphia County, have shifted to the “yellow” phase.  Accordingly, as of June 5, more than half of Pennsylvania are classified as “green.”  https://www.governor.pa.gov/newsroom/gov-wolf-state-continues-phased-reopening-with-16-more-counties-set-to-go-green-on-june-5/

[2] https://triblive.com/news/pennsylvania/what-moving-into-green-zone-does-does-not-mean-under-gov-wolfs-reopening-plan/

[3] https://www.governor.pa.gov/wp-content/uploads/2020/05/20200527-TWW-green-phase-order.pdf

[4] https://triblive.com/local/regional/gov-wolf-to-move-allegheny-westmoreland-other-counties-to-green-phase/

[5] See Section 1(C) of the Governor’s May 27 Order.

[6] See Section 1(D) of the Governor’s May 27 Order.

[7] See Section 1(E) of the Governor’s May 27 Order and https://www.governor.pa.gov/wp-content/uploads/2020/05/20200527-Restaurant-Industry-Guidance.pdf

[8] See Section 1(F) of the Governor’s May 27 Order.

[9] See Section 1(F) of the Governor’s May 27 Order.

[10] https://www.governor.pa.gov/newsroom/gov-wolf-state-continues-phased-reopening-with-16-more-counties-set-to-go-green-on-june-5/

[11] https://www.governor.pa.gov/newsroom/gov-wolf-state-continues-phased-reopening-with-16-more-counties-set-to-go-green-on-june-5/

[12] See Section 1(H) of the Governor’s May 27 Order.

[13] See Section 1(I) of the Governor’s May 27 Order.

[14] https://www.governor.pa.gov/newsroom/wolf-administration-releases-summer-camp-and-recreation-guidance/

[15] https://www.post-gazette.com/local/region/2020/05/27/pools-open-PA-Gov-Wolf-phases-Greene-Butler-Allegheny-Dormont-Scott-Cranberry/stories/202005270124

[16] https://www.governor.pa.gov/newsroom/gov-wolf-issues-updated-green-phase-order-guidance-on-dining-and-professional-sports/