PA Gov. Wolf Orders Closure of All ‘Non-Life Sustaining’ Businesses

March 19, 2020Alerts

On Thursday, March 19, 2020, Pennsylvania Gov. Tom Wolf drastically heightened his administration’s COVID-19 mitigation efforts by issuing an order — superseding all previous orders — that will prohibit the physical operation of any “business in the Commonwealth that is not a life sustaining business regardless of whether the business is open to members of the public.” The order was effective immediately and will remain in effect indefinitely (i.e., "until further notice").

The secretary of the Pennsylvania Department of Health also issued an order consistent with Gov. Wolf’s, which can be accessed here.

The governor’s prohibition does not extend to virtual or telework operations (e.g., remote work from home) “so long as social distancing and other mitigation measures are followed[.]” Life-sustaining businesses are also exhorted to observe such measures, as defined by the Centers for Disease Control and Prevention (CDC), for the protection of workers and patrons.

Most notable about the governor’s order is the provision threatening enforcement actions against any non-life sustaining business that is not in compliance with the order. Enforcement actions will be taken against non-life sustaining businesses that are out of compliance effective March 23, 2020, at 12:01 AM.

Attached to the order was a comprehensive list of “life sustaining” versus “non-life sustaining” businesses broken down by industry, with several subcategories. An UPDATED list was issued on March 20, 2020 to offer additional clarity as to what constitutes a “life sustaining” business. This amended list can be accessed here.

The following includes some of the “life sustaining” businesses that will be allowed to continue physical operations:

  • Natural Resources and Mining (including Agriculture, Forestry, Fishing, Hunting, and Oil & Gas Extraction);
  • Agriculture (crop and animal production as well as fishing, hunting and trapping);
  • Food Manufacturing;
  • Chemical Manufacturing (except paint, coating and adhesive);
  • Durable and Non-Durable Merchant Wholesalers (except furniture, lumber and “Apparel, Piece Goods, and Notions”);
  • Grocery Stores;
  • Gasoline Stations;
  • “Other” General Merchandise Stores (i.e., “big box” stores);
  • Transportation and Warehousing (except charter buses and “Scenic and Sightseeing Transportation”);
  • All Utilities;
  • Waste Management and Remediation Services;
  • Telecommunications (except motion picture and video, software publishers and telecommunications resellers);
  • Insurance Carriers and Related Activities (including Employee Benefit Funds);
  • Rental and Leasing Services;
  • Accounting, Tax Preparation, Bookkeeping, and Payroll Services;
  • All Healthcare and Social Assistance, such as EMS, hospitals, and nursing homes (but not child day care services; ; moreover, elective procedures are prohibited for ambulatory health care services—e.g., physicians, dentists, outpatient care, medical and diagnostic labs, etc.);
  • Repair and Maintenance (including automotive, electric, industrial machinery and personal/household goods);
  • Dry Cleaning and Laundry Services;
  • Religious, Grantmaking and Giving, and Social Advocacy Organizations; and
  • Hotels and Motels*

* The Pennsylvania Restaurant & Lodging Association received clarification from the Governor's Office following the issuance of his order that hotels are considered essential and do not need to close. However, hotels must ensure gatherings are limited to no more than 10 people and must cease any dine-in services (take-out services only are allowed).

Businesses that offer food and beverage carry-out, delivery and drive through services may also continue to do so (consistent with the governor’s previous orders). However, restaurants and bars are still prohibited from offering dine-in services. Enforcement actions will be taken against restaurants and bars that are out of compliance effective March 19, 2020, at 8 PM.

The industries hit hardest by this order, and therefore prohibited from continuing their physical operations, include:

  • Construction;
  • Manufacturing (including textile, apparel, leather, wood, fabricated metal, computer, electrical equipment/appliance, transportation and furniture);
  • Most types of Retail Stores (including “Health & Personal Care Stores” but not including pharmacies);
  • Securities, Commodity Contracts, and Other Financial Investments and Related Activities;
  • Finance and Insurance;
  • Real Estate;
  • Professional, Scientific, and Technical Services (except, of course, for scientific research and development as well as “Other,” undefined such services as well as Accounting, etc. (as noted above);
  • Administrative and Support Services that do not relate to services to buildings, dwellings, and facilities (including investigation and security);
  • Educational Services (in keeping with the Wolf Administration’s previous orders closing schools);
  • Arts, Entertainment, and Recreation (including performing arts, spectator sports, and gambling); and
  • Personal Care Services (barbershops, nail & beauty salons, and gyms).

Although legal services are among the non-life sustaining “Professional Services,” the Court Administrator for the Administrative Office of Pennsylvania Courts (AOPC), H. Geoffrey Moulton Jr., issued a statement on March 20, 2020, stating the AOPC takes the view that, “restricted access to law offices and facilities by legal professionals, staff, and clients is permitted to the degree necessary to allow attorneys to participate in court functions deemed essential by a President Judge per the Supreme Court's order of March 18, 2020, so long as social distancing and other mitigation measures are employed for the protection of lawyers, staff, and clients.”

Gov. Wolf has directed local officials and state agencies to enforce the closure order, including the Pennsylvania Liquor Control Board, Department of Health, Department of Agriculture and State Police. Noncompliant businesses, organizations and entities risk forfeiting their ability to receive applicable disaster relief and/or may be subject to other appropriate administrative action (including termination of state loan or grant funding and suspension or revocation of licensure). The Department of Health is also authorized to take disease control measures against noncompliant entities, such as quarantine and isolation. Violators of the order are also subject to fines and imprisonment relating to any other criminal charges that might be applicable.

According to the Commonwealth of Pennsylvania website, "special exemptions will be granted to businesses that are supplying or servicing health care providers" in extenuating circumstances. Any impacted business can seek a waiver/exemption to the governor’s closure order by completing this online form. They can also send an outline explaining the need for an exemption to Pennsylvania directly at [email protected]. Pennsylvania’s website further states that, “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.”

Businesses seeking a waiver should suspend in-person physical operation until their requests are approved and provided. Businesses not clearing in a category authorized to maintain physical operations according to the list and the the Department of Homeland Security Cybersecurity and Infrastructure Security Agency advisory (CISA Advisory) are encouraged to apply for a waiver.

The Pennsylvania Department of Community and Economic Development (DCED) encourages businesses to contact them at [email protected] with questions as to whether their organization needs to close if, after reviewing the governor’s order (and list) and consulting the CISA Advisory, the answer remains unclear. Businesses can also call 1-877-PA-HEALTH (select option 1).

In addition, Governor Wolf announced yesterday the availability of low-interest disaster-relief loans for small businesses and non-profit companies in all 67 counties of Pennsylvania through the U.S. Small Business Administration. The DCED is also working on loan and grant relief packages.

Fox Rothschild attorneys continue to actively monitor this historic situation as it develops. Our attorneys are equipped to advise regarding this order specifically and COVID-19 in general and the impact on individuals and businesses amidst these extraordinary circumstances.