Practice Group: Business Law & Transactions
Most of us know that to deal with the Coronavirus pandemic, governments have ordered certain businesses to close. As recently as three weeks ago, few imagined that the world would be turned on its head. The global pandemic is a different kind of crisis. Businesses are struggling to determine what they can do when life might return to any kind of normalcy, and how to get from here to there.
Obviously, most importantly, do everything possible to protect yourself, your family and your employees.
But while doing so:
WHO CAN WORK?
In Pennsylvania, anyone who can work at home or remotely and those engaged in “life-sustaining” jobs and industry sectors; non-“life-sustaining” businesses were ordered closed, regardless of whether such businesses are open to members of the public (see more on this later), by Order of the Governor dated Thursday, March 19, 2020. The Governor’s order can be found here »
Prior to this, at the Federal level, on March 16, 2020 the President issued updated Coronavirus Guidance for America which stated that:
“If you work in a critical infrastructure industry, as defined by the Department of Homeland Security, such as healthcare services and pharmaceutical and food supply, you have a special responsibility to maintain your normal work schedule.”
In accordance with its mandate to execute the Secretary of Homeland Security’s pursuant to the Homeland Security Act of 2002, the Cybersecurity and Infrastructure Security Agency (CISA), has developed a list of “Essential Critical Infrastructure Workers.” This list helps in guiding decision making to be made by State and local officials in connection with their efforts to protect their communities, while at the same time ensuring continuity of essential public health and safety functions, as well as economic and national security. This guidance, which is intended by the CISA to be advisory in nature and not a Federal directive in and of itself, can be found here »
Following CISA’s lead, the Commonwealth of Pennsylvania has published a list of “life-sustaining” businesses that are exempt from the Governor’s Order and therefore allowed to continue in-person, physical operations without a waiver. The list is subject to further updates and revisions.
Even if a business does not fall squarely within a category listed as “life-sustaining” on Pennsylvania’s list, it may qualify for a waiver if it provides goods or services necessary to maintain operations of a business on Pennsylvania’s “life-sustaining” list, or in one of the “critical infrastructure” categories outlined in the CISA list. However, until any such waiver is granted, any such business is required to comply with the Governor’s order and suspend all in-person operations until a waiver is granted.
Keep in mind, though, that regardless of the reason a business is permitted to continue in-person operations (either because it is on the Pennsylvania list or CISA list, or it is granted a waiver), it must follow social distancing and other COVID-19 mitigation measures designed to protect employees and the public in accordance with guidance provided by the Pennsylvania Department of Health, and the Centers for Disease Control and Prevention.
The closures ordered by the Governor are enforceable through criminal penalties. While the Commonwealth currently expects that discipline for violations will be “progressive,” i.e., beginning with a “warning,” there is no guarantee that the Commonwealth will not seek to punish offenders by fines and even jail time.
If you believe that your business is exempt (either because it is on the Pennsylvania list or CISA list, or is entitled to a waiver), but the matter is a “close call,” you can e-mail your questions to the Pennsylvania Department of Community and Economic Development (DCED) at firstname.lastname@example.org or file a request for a waiver here »
Of course, please reach out to us if you would like our assistance in analyzing whether your business falls within the categories on the Pennsylvania or CISA list, or in preparing an application for a waiver with the DCED.
Michael A. Petrizzo, Jr. contributed to this Article.
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