Pennsylvania Retailers and COVID-19 Protocols

This article analyzes a recently released COVID-19 Executive Order from Governor Wolf. This order  was updated by a temporary order in effect from December 12, 2020, through January 4, 2021, to address a significant increase in cases at year’s end.

The Governor announced several changes to prior orders in response to a significant increase in COVID-19 cases across Pennsylvania. The November order, currently in effect, 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 should be viewed as a law relative to retail establishments. From the perspective of a retail operation, 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 in a retail setting.

According to the Governor’s order for “Mitigation, Enforcement, and Immunity Protections,” effective as of 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 the following:

• Regular cleaning and disinfecting consistent with cleaning protocols adopted by the business. The order is specific about the nature of cleaning and provides directions regarding the disinfection of common areas, bathrooms, employee break rooms, and equipment used by customers. The order is also specific about cleaning checkout counters and cash registers.
• The order details requirements for employee spacing and shifts. The goal is to avoid having employees stand or sit near one another while performing their jobs.
• Employees are expected to wear face coverings during their time at the business. Employees must be trained and educated on protocols involving masking, cleaning, and the separation/spacing of customers.
• If an employee becomes sick during the workday, the order offers direction about 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 that 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 must be placed at high contact locations, and plexiglass shields should 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 but 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 reaches beyond prior orders through offering visibility into how the state plans to enforce the order. Specifically, retailers can expect both licensing bodies and police forces to monitor and assure compliance.

Vaccinations

According to state authorities, Pennsylvania is currently in phase “1A” of the vaccine roll-out. The 1A category includes health care workers, individuals in long-term care facilities, persons aged 65 or older, and those ages 16 to 64 with high-risk conditions.

Travel

The order of November 17, 2020, was updated with an amended order dated December 9, 2020. Pursuant to the new order, individuals must produce proof of COVID-19 testing within 72 hours prior to entering the Commonwealth or quarantine for 10 days upon entry into Pennsylvania. The order applies to all states and applies to individuals who are either traveling to Pennsylvania or who have left Pennsylvania and are returning.

Considering the rapidly changing legal 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. This 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.” Most importantly, it represents the new standard for protecting a business against both private and public legal action.