Jackson Kelly PLLC

Labor & Employment News Alert

What Governor Wolf’s Order for “Non-Life-Sustaining” businesses to close means

March 20, 2020

By: Lindsay D. Petrosky, Jason L. Ott, and Derrick L. Maultsby, Jr.

Governor’s Wolf prior order for a statewide shut down of all “non-essential” businesses has been expanded to all “non-life-sustaining” businesses. These efforts follow the Governor’s disaster emergency declaration on March 6, 2020, pursuant to 35 Pa. C.S. § 7301(c). On March 19, 2020, the Governor ordered a prohibition on “non-life-sustaining” businesses citing to the powers vested in his office under 35 Pa. C.S. § 7301. The Order, however, has been the cause of some confusion on how certain businesses may or should proceed. The Order states the following: 

“No person or entity shall operate a place of business in the Commonwealth that is not a

life sustaining business regardless of whether the business is open to members of the

public. This prohibition does not apply to virtual or telework operations (e.g., work from

home), so long as social distancing and other mitigation measures are followed in such

operations.”

A list of businesses considered to be life sustaining and those that are not was attached to the Order. Although the list provided clear guidance for many businesses, others are still uncertain about whether they may continue to operate during the pendency of the Order. Ambulatory healthcare services, hospitals, and nursing facilities are clearly permitted to maintain physical operations as a direct function of sustaining life. However, the term “life sustaining” can be relative. The language of Governor Wolf’s Order addressed restaurants specifically. Restaurants have been expressly ordered to terminate all dine-in services but are able to continue delivery, take-out, and drive-through services if social distancing and other mitigation measures are followed. Other industries must utilize the list of businesses to determine whether they may continue physical operations.

Interestingly, Governor Wolf expressed in his public statement attendant to the Order that the Pennsylvania government may consider exemptions for businesses that provide services or support to healthcare providers. An exemption could permit such businesses to maintain physical operations even if they are identified as a “No” on the chart appended to the Order. Many businesses could fall into this category as support and service providers to the healthcare industry. Unfortunately, at this point we do not have any details about specific exemptions or any procedures to request such an exemption proactively or otherwise. We are hopeful that the Pennsylvania government will issue guidance soon.

According to Governor Wolf and the Order, enforcement actions may include fines or other penalties, including potential suspension or revocation of licenses, against any business or professional failing to comply with the Order as of 12:01 a.m. on March 21, 2020. This immediate enforcement of the Order makes it vital for businesses to assess where they stand and pursue immediate action to ensure compliance. If any business needs further guidance about the Order, the experienced attorneys in our Pittsburgh office are available by phone and email to assist, even while we as a firm comply with the current restrictions. Please feel free to reach out with any questions or concerns.

 

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