Pennsylvania Governor Announces Phased Reopening Plan from COVID-19 Shutdown and Releases Guidance for the Construction Industry to Reopen May 1

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Major reopening developments are brewing in the Commonwealth of Pennsylvania. On April 22, 2020, Governor Wolf announced his general plan to reopen Pennsylvania beginning May 8, 2020 following his various business shutdown and stay-at-home orders. Additionally, on April 23, the Wolf administration announced that the construction industry can resume operations on May 1, 2020, one week earlier than previously announced, and issued guidance for the construction industry. We discuss both of these announcements below.

Phased Reopening Plan

The plan will be deliberate and in phases to minimize a spike of new cases and the need for additional stay-at-home and business closure orders. Governor Wolf emphasized:

• Our approach will be data driven and reliant upon quantifiable criteria to drive a targeted, evidence-based, regional approach to re-openings in Pennsylvania.
• We will put forth guidance and recommendations for employers, individuals, and health care facilities and providers for assured accountability as we reopen.
• Reopening necessitates that adequate personal protective equipment and diagnostic testing are available.
• Reopening requires a monitoring and surveillance program that allows the Commonwealth to deploy swift actions for containment or mitigation.
• Protections for vulnerable populations must remain steadfast throughout the reopening process, such as limitations on visitors to congregate care facilities and prisons.
• Limitations on large gatherings unrelated to occupations should remain in place for the duration of the reopening process.

The color-coded plan is organized based on three phases: Red, Yellow, and Green. Different regions (as depicted in the Governor’s press release) or perhaps counties may move from one phase to the next based upon local conditions and demonstrated success at the current phase. Moreover, within each of these phases there could be additional actions, orders, or guidance depending on the public health and economic conditions facing regions or counties.

• Red Phase: All of Pennsylvania is currently in the Red Phase, which is characterized most significantly by: (1) business closure orders which only permit the in-person operation of life-sustaining businesses, (2) stay-at-home orders that only permit residents to leave for critical needs, such as groceries and healthcare, (3) school closures, and (4) the ban of large gatherings.
• Yellow Phase: The North-Central and Northwest regions are likely to reach the Yellow Phase by May 8. The plan provides for the following easing of and continued restrictions:
  • Businesses with In-Person Operations Must Follow Business and Building Safety Orders
  • Telework Must Continue Where Feasible
  • In-Person Retail Allowed - Curbside and Delivery Preferable
  • Child Care Open with Worker and Building Safety Orders
  • Schools Remain Closed for In-Person Instruction
  • Stay at Home Restrictions Lifted in Favor of Aggressive Mitigation
  • Large Gatherings of More than 25 Prohibited
  • Indoor Recreation, Health and Wellness Facilities (such as gyms, spas), and all Entertainment (such as casinos, theaters) Remain Closed
  • Restaurants and Bars Limited to Carry-Out and Delivery Only
• Green Phase: Regions that demonstrate success in containing and mitigating COVID-19 cases while operating in the Yellow Phase will be permitted to move to the Green Phase, which includes the least restrictions and represents the closest return to a normal economy and society among the three phases. This phase is characterized by:
  • Lifting stay-at-home orders
  • Lifting business closure orders
  • Lifting of other aggressive mitigation orders
  • All businesses and individuals must follow CDC and PA Department of Health guidelines

The plan recognizes that the “reopening and the easing of restriction approach will primarily focus on regions, however certain industries are more susceptible to the spread of COVID-19.” Further, the plan reiterated that the Wolf administration “will work with stakeholders in various industry sectors, as well as labor representatives and health professionals to craft guidance with tailored and appropriate safeguards in place.”

Perhaps most critically, the administration “will provide broad guidance for businesses and individuals that will enable employers to use their own expertise to decide what is best for their business while reporting on outcomes to the Commonwealth.” The press release specifically notes that businesses will be required to “make employees and customers aware of the guidance provided by the Commonwealth to keep people at their establishment safe,” post a “COVID-19 Safety Procedures for Businesses flyer to be clearly displayed at workplaces,” and designate a “Pandemic Safety Officer” who would be in charge of carrying out the COVID-19 safety procedures set forth in this guidance.

Construction Industry Guidance

As mentioned above, the Wolf administration announced that the construction industry can resume operations as of May 1, 2020, one week earlier than previously announced (as we discussed here). Moreover, Governor Wolf has now issued safety guidance for all construction businesses and their employees to follow to mitigate the spread of COVID-19 as the industry resumes. This guidance was developed based on guidance created by the General Contractors Association of Pennsylvania and provides universal protocols for all construction activity, as well as specific additional guidance for residential, commercial and public construction projects.

The guidance provides the following detailed requirements for constructions businesses to follow as they restart in-person operations:

• Follow all applicable provisions of the Health Secretary’s April 15 order regarding business safety measures (discussed here), including but not limited to provisions requiring that every person present at a work site wear masks/face coverings, and provisions requiring the establishment of protocols for execution upon discovery that the business has been exposed to a person who is a probable or confirmed case of COVID-19.
• Follow all applicable provisions of the Order of the Secretary of Health providing for building safety measures, issued April 5, 2020.
• Follow applicable Department of Health (DOH) and Centers for Disease Control and Prevention (CDC) guidance.
• Require social distancing (6-feet minimum distance between workers) unless the safety of the public or workers require deviation (e.g. drywalling, team lifting).
• Provide hand wash stations at appropriate locations on the site such as building entrances, break areas, food truck areas, offices, trailers, and job site egress areas.
• Implement cleaning or sanitizing protocols at all construction sites and projects. Identify and regularly clean and disinfect areas that are at high risk for transmission (requirements to clean common areas and regularly trafficked spaces periodically).
• Ensure all gatherings are limited to no more than 10 people, maintaining 6-foot social distancing, when required to meet, even when conducted outside.
• Use virtual meetings, and disseminate information electronically to the extent feasible.
• Stagger shifts, breaks, work areas and/or stacking of trades where feasible to minimize workers on site.
• Limit tool sharing and sanitize tools if they must be shared.
• Employ jobsite screening based on CDC guidance to determine if employees should work. Prohibit from working any employees with any symptoms of COVID-19. Encourage sick employees to stay home.
• Prohibit unnecessary visitors to any project or work site, and limit supplier deliveries.
• Limit access to enclosed spaces to the extent feasible.
• Ensure workers are traveling to and from the job site separately. Wherever possible employees should not share a vehicle.
• Identify a “Pandemic Safety Officer” for each project or work site, or, if a large-scale construction project, then for each contractor at the site. The primary responsibility of the Pandemic Safety Officer will be to convey, implement, and enforce the social distancing and other requirements of this guidance for the protection of employees, suppliers, and other personnel at the site.

The guidance also provides specific guidelines regarding the number of individuals who can be on-site at both residential and commercial construction jobs, depending on the size of the facility in which the employees are working.

More information regarding the administration’s general plan to reopen the economy and guidance for the business community will be forthcoming. Seyfarth will continue to monitor and provide timely updated of all of Pennsylvania’s employment-related developments in the wake of COVID-19.