Governor Wolf Issues “Stay at Home” Order for Certain Pennsylvania Counties

Updates:

  • 3/27/2020: Governor Wolf has amended his order to include residents of Berks, Butler, Lackawanna, Lancaster, Luzerne, Pike, Wayne, Westmoreland, and York Counties. The amended order is available here.
  • 3/25/2020: Governor Wolf has amended his order to include residents of Northampton and Lehigh Counties. The amended order is available here.
  • 3/24/2020: Governor Wolf has amended his order to include residents of Erie County, in addition to the seven counties previously impacted. The amended order is available here.

Original Post:

Effective Monday, March 23, 2020 at 8:00 p.m., residents in Philadelphia, Allegheny, Bucks, Chester, Delaware, Monroe, and Montgomery counties are required “to stay at home except as needed to access, support or provide life-sustaining business, emergency or government services.”  Residents are permitted to “engage in outdoor activities,” but gatherings are prohibited, and anyone leaving home must practice social distancing and other mitigation efforts.

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Pennsylvania Businesses Ordered to Shut Down their Physical Operations If Not “Life Sustaining”

UPDATES

  • 3/20/2020: The Wolf administration has updated the list of what it deems a “life sustaining” business. The updated list is here. Business now identified as life sustaining that were not previously included include: forestry, logging, and support activities; mining (including coal and metal ore mining) and support activities; specialty food stores; insurance carriers and related activities (except in-person sales brokerage); insurance and employee benefit funds; accounting, tax preparation, bookkeeping, and payroll; traveler accommodation; and dry cleaning and laundry services. Businesses that were previously designated as “life sustaining” but no longer carry that designation (and therefore must close in-person facilities) include beer, wine, and liquor stores (except beer distributors) and civic and social organizations. The governor’s press release announcing the updates is here. The administration has made clear that this is “an evolving situation and decisions will continue to be made and revisited as needed.”
  • 3/20/2020: Businesses seeking an exemption to the closure Order may do so via this website. Businesses are required to provide a justification as to why the operation is “life-sustaining,” and must state the number of employees required to be on-site to perform the “critical work.” Businesses must also describe plans to comply with CDC guidelines and mitigation efforts.
  • 3/21/2020: Governor Wolf amended the enforcement deadline from his original shutdown Order. Enforcement on non-compliant businesses will begin Monday, March 23 at 8:00 a.m., and not on Saturday, March 21, as previously ordered.
  • 3/21/2020: The Department of Community and Economic Development has issued a set of Frequently Asked Questions and responses to provide additional guidance regarding Governor Wolf’s shutdown Order. The FAQ responses indicate that authorities should make compliance determinations based on the operations of a particular facility, rather than the business as a whole. For example, construction businesses (which are identified as non-“life sustaining”) may continue working on road repair and similar emergency efforts, but must suspend other activities that are not “clearly authorized” as life sustaining. Further, in response to a question about whether businesses may “maintain limited in-person essential personnel for security, processing of essential functions, or to maintain compliance with federal, state or local regulatory requirements,” the DCED states that businesses suspending physical operations pursuant to the Order “must limit on-site personnel to maintain critical functions,” while following social distancing and other mitigation guidelines. The FAQ responses also indicate that enforcement “should be prioritized to focus on businesses where people congregate,” and that although enforcement measures are within the discretion of the state or local agency, the administration expects that enforcement will be progressive, and will start first “with a warning to any suspected violator.” The FAQ responses also clarify that hotels and motels, as well as local governments and municipalities, are not required to cease physical operations.

On Thursday, March 19, 2020, Pennsylvania Governor Tom Wolf ordered all Pennsylvania businesses that are not “life sustaining” to shut down physical operations by Saturday, March 21 at 12:01 a.m.  A copy of the Order is here.  Such business may continue to operate on a virtual or telework basis, “so long as social distancing and other mitigation measures are followed.”

The Order specifically exempts “life sustaining businesses,” which may remain open subject to those businesses undertaking the same social distancing and mitigation measures.  Similarly, the Order allows “businesses that offer carry-out, delivery, and drive-through food and beverage service” to continue operations, subject to the same social distancing and mitigation measures.  The Order incorporates a list of life and non-life sustaining businesses, which can be found here.

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Third Circuit Upholds Philadelphia Ban on Salary History Inquiries

In early February 2020, the Third Circuit Court of Appeals decided that a Philadelphia ordinance passed years ago could go into effect and that Philadelphia employers will no longer be able to ask job applicants about their salary history in job interviews and related contexts.

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Maine and New Hampshire Join National Trend, Enacting Laws Prohibiting Non-Competes for Lower-Wage Workers

As we have previously discussed, there is an ongoing trend of states prohibiting the use of non-compete agreements in certain situations, including with lower-wage workers. Maine and New Hampshire are the most recent examples.

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U.S. Department of Labor Issues New FMLA Guidance

On March 14, 2019, the U.S. Department of Labor (DOL) issued an opinion letter concerning the Family Medical Leave Act (FMLA). The FMLA provides eligible employees a maximum of 12 weeks of unpaid, job-protected leave for specified family and personal medical reasons and up to 26 weeks to care for a covered service member per year. In its opinion letter, the DOL addressed whether an employer may delay designating paid leave as FMLA leave or permit employees to expand their FMLA leave beyond the statutory requirements.

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