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Creenan & Baczkowski, PC Law Blog

Sunday, March 22, 2020

Responding to PA's Business Closure List

Governor Wolf has ordered all non-life-sustaining businesses in Pennsylvania to close their physical locations as of 8 p.m. March 19, to slow the spread of COVID-19.

 

The ORDER is here.

The MARCH 21 LIST is here.

Many businesses are concerned about enforcement.  The PA DCED includes the following information:

Failure to comply with these requirements will result in enforcement action that could include citations, fines, or license suspensions.

The governor has directed the following state agencies and local officials to enforce the closure orders to the full extent of the law:

  • Pennsylvania Liquor Control Board
  • Department of Health
  • Department of Agriculture
  • Pennsylvania State Police

Local officials, using their resources to enforce closure orders within their jurisdictions
Private businesses, local organizations and other noncompliant entities that fail or refuse to comply with the governor’s orders that protect the lives and health of Pennsylvanians will forfeit their ability to receive any applicable disaster relief and/or may be subject to other appropriate administrative action. Such action may include termination of state loan or grant funding, including Redevelopment Assistance Capital Project (RACP) grant funding and/or suspension or revocation of licensure for violation of the law.

Finally, in addition to any other criminal charges that might be applicable, the Department of Health is authorized to prosecute noncompliant entities for the failure to comply with health laws, including quarantine, isolation or other disease control measures. Violators are subject to fines or imprisonment.

 

 

As of March 22, 2020, there have been two updates to the PA Business Closure List.  The List identifies by categories that businesses that are and are not considered life-sustaining.  Life-sustaining businesses can keep their physical location open but some have limitations as noted.  Those businesses not permitted shown to be a NO.  

If your business requires the physical location to perform a life-sustaining function, then you can apply for a waiver.

To apply for a WAIVER - click here for the PADCED Website.  All decisions will be communicated by email and will balance public health, safety, and the security of our industry supply chains supporting life-sustaining businesses.

Importantly, the US Department of Homeland Security has identified Critical Infrastructure Sectors that should continue to operate as described therein.   CISA provides a sector guidance.  The 16 Critical Infrastructure Sectors are:

 

Additionally, the PA DCED provides the following additional guidance from its website:

 

Who needs a waiver?

Any business not authorized to maintain physical operations according to the list and the Department of Homeland Security Cybersecurity and Infrastructure Security Agency advisory should apply for a waiver.

Are businesses allowed to continue in-person, physical operations while applying for a waiver?

Businesses seeking a waiver should comply with the Governor’s Order and suspend in-person, physical operations until a waiver is approved and provided.

How does a business apply for a waiver?

The easiest and quickest way to submit a waiver is to fill out DCED’s waiver form and submit it to RA-dcexemption@pa.gov.

What should be included in the waiver request?

The waiver request form available here contains further detail on the information to be submitted in the waiver request.

How long will it take to get a decision on a submitted waiver?

DCED has received a high volume of waiver requests and is processing waivers as rapidly as possible.

If a business is classified as non-life-sustaining, but has the ability to operate remotely, must the business close down?

No. Non-life-sustaining businesses may continue to operate remotely by telework, and in doing so must follow the social distancing and other COVID-19 mitigation guidance provided by the Pennsylvania Department of Health and CDC.

If a manufacturing business is in a classification that is not to maintain physical operations, but is in the process of converting to a manufacturing process that is authorized to maintain physical operations in order to address COVID-19, what should they do?

Businesses not clearly in a category authorized to maintain physical operations according to the list and Department of Homeland Security Cybersecurity and Infrastructure Security Agency advisory should apply for a waiver. In this particular circumstance, please note in the waiver request that the facility is transferring operations to a life-sustaining function and the Department of Community and Economic Development will communicate with you about next steps.

May businesses which are required to suspend physical operations maintain limited in-person essential personnel for security, processing of essential functions, or to maintain compliance with federal, state or local regulatory requirements?

Businesses suspending physical operations must limit on-site personnel to maintain critical functions, and in all cases follow social distancing and COVID-19 mitigation guidance provided by the PA Department of Health and CDC.

Should hotels suspend in-person, physical operations?

Hotels and motels are not required to suspend in-person, physical operations. However, like all businesses they must follow social distancing and COVID-19 mitigation guidance provided by the PA Department of Health and CDC and ensure the hotel does not have gatherings larger than 10 people as recommended by the CDC. The hotel may not operate any dine-in food services; all food services must be a takeout-only option.

Local political units were absent from the list. Should municipalities close down?

Local political units are not required to suspend in-person physical operations but should curtail in-person operations to the extent practicable and follow COVID-19 mitigation guidance provided by the Pennsylvania Department of Health and the CDC. All decisions should appropriately balance public safety while ensuring the continued delivery of critical infrastructure services and functions.

How should municipalities and local governments exercise their enforcement authority in supporting the Governor’s order?

The identified sectors in the list of life-sustaining businesses is not intended to be an authoritative or exhaustive list of critical infrastructure sectors and functions that should continue during the COVID-19 response. State and local officials should use best judgment in exercising their authorities and issuing implementation directives and guidance. Similarly, critical infrastructure industry partners must use best judgment, informed by the list and DHS Guidance, to ensure continued operations of critical infrastructure services and functions. All such decisions should appropriately balance public health and safety while ensuring the continued delivery of critical infrastructure services and functions.

Construction was classified as non-life-sustaining. Should all construction companies suspend in-person physical operations? Can a construction company continue projects related to road repair, road completion, flood mitigation, etc.?

Construction activities not clearly authorized under the DHS Guidance should suspend general operations, but may maintain specific limited operations necessary to ensure compliance with federal, state, or local regulatory requirements.

If a business has been granted a waiver, how can the business demonstrate that to an enforcement agency?

Businesses approved for a waiver will receive written confirmation, which they may share with an enforcement agency to confirm authorization to maintain operations.

How will this order be enforced? Will there be warnings before fines or other enforcement actions?

The closure of non-life sustaining businesses is a measure that has been taken to control the spread of a communicable disease, COVID-19, and has been ordered by the Governor and the Secretary of Health. The closures are enforceable through criminal penalties, under the Disease Control and Prevention Law of 1955 and the Administrative Code of 1929.

While other criminal penalties in those laws, as well as under the Crimes Code and the Liquor Code, may apply, the following are the most directly applicable provision for enforcement of the Orders: 71 P. S. § 1409 and 35 P.S. § 521.20(a).

We strive to ensure enforcement of the orders will be consistent throughout the Commonwealth. We also expect that any discipline for violation of the orders will be progressive discipline that begins with a warning to any suspected violator. Furthermore, enforcement should be prioritized to focus on businesses where people congregate.

 


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