New Executive Order from the Governor Regarding Covid-19 Mitigation

In a past column, I discussed the retailer's best approach in protecting their employees, customers, and themselves. A retailer's obligations change frequently and this article is focused on the recently released COVID-19 Executive Order from Governor Wolf.

At a high-level, the Governor announced several changes to prior Orders based upon a significant increase in COVID-19 cases across Pennsylvania. The new Order includes a stay at home advisory, a reduction in permitted guests at indoor and outdoor venues, and specific restrictions relative to the sale of alcohol by bars and restaurants. While some of these recently announced guidelines are described as "advisory", the Governor's new Order relative to retail establishments should be viewed as a law. From the perspective of a convenience store, the most important aspects of the order revolve around masking, signage, and cleaning. Put in simple terms, the Order is directed at protecting employees and customers.

According to the Governor's Order for "Mitigation, Enforcement, and Immunity Protections," effective November 27, 2020, businesses serving the public in a physical space, including inside or outside of the building have been ordered to take specific actions. These include, but are not limited to:

• Regular cleaning and disinfecting consistent with cleaning protocols adopted by the business. The Order is specific about the nature of cleaning and provides directions relative to disinfection of common areas, bathrooms, employee break rooms, and equipment used by customers. The Order is also specific relative to cleaning of checkout counters and cash registers.

• The Order is specific regarding employee spacing and shifts. At a high-level, the goal is to avoid having employees stand or sit near one another in order to perform their jobs.
• Employees are expected to wear face coverings during their time at the business. Employees are to be trained and educated relative to protocols involving masking, cleaning, and separation/spacing of customers.
• If an employee becomes sick during the workday, the Order offers direction relative to sending that employee home, notifying other employees, and quarantining those who have been exposed.
• In addition to the above requirements, retail businesses must place signage at the entrance and throughout the business which mandates universal face coverings and physical distancing for all individuals entering the business, including employees and customers.
• The Order requires marking on store aisles to be directionally one way. Hand sanitizers are to be placed at high contact locations, and plexiglass shields are to be installed at checkout areas to separate employees and customers.
• For those businesses selling alcohol as distributors or retailers, the Order does not necessarily limit ongoing sales. The new Order places limits on sales in bars, restaurants, and clubs but indicates that takeout sales of alcohol for offsite consumption are permitted subject to any limitations currently imposed by Pennsylvania law.

Enforcement

It is important to note that the Governor continues to operate pursuant to his emergency powers. The preamble to the Order makes specific reference to the increase in COVID-19 cases and the fact that the COVID-19 pandemic is seen as a National Emergency. As a result, the November 27, 2020 Order goes beyond prior Orders and offers visibility to how the state plans to enforce the Order. Specifically, retailers can expect both licensing bodies and police forces to monitor and assure compliance.

Considering the rapidly changing landscape relative to COVID-19 cases, and the Governor's new Executive Order, retailers should review their COVID-19 protocols and remind their staff of their obligations under the law and as employees. Compliance with state regulations is the foundation for any defense against COVID-19 claims against a retailer. Regardless of one's personal feelings relative to this Order, it is the "law of the land." More importantly, it represents the new standard for protecting a business against both private and public legal action.