The spread of the coronavirus (COVID-19) and Governor Wolfe’s Executive Order that went into effect March 19, 2020 has severely impacted, and in many instances crippled, Pennsylvanian businesses. Many companies are faced with the decision of whether they need, and are legally permitted, to lay off any of their employees to ensure the continued existence of their company in these uncertain times. Letting employees go in a job market where few companies are hiring could lead them to the decision to pursue legal action against you. Don’t let your company blindly fumble ahead, you need to take steps to protect your business interests.
One of the best things business owners can do right now is stay informed and up to date with the latest orders from the Governor regulating businesses. You don’t want to find yourself in a position that could have been avoided by merely keeping up to date with the Governor’s current and future orders. On March 6, 2020, Governor Wolfe proclaimed the existence of a disaster emergency throughout the Commonwealth of Pennsylvania pursuant to 35 Pa. C.S. § 7301(c). This allowed the Governor to specifically control ingress and egress to and from the disaster area, the movement of people within it, premises occupancy, and suspensions/limitations on the sale, dispensing, or transportation of alcoholic beverages, firearms and combustibles. 35 Pa. C.S. § 7301(f). Throughout a disaster emergency, the Governor can issue, amend, and rescind executive orders, proclamations and regulations with any of his directives having the force and effect of law. 35 Pa. C.S. § 7301(b). Pursuant to these powers, the Governor ordered a prohibition on the operation of businesses that are not life sustaining. However, this order doesn’t apply to virtual or telework operations (working from home) as long as social distancing and other mitigation measure are followed. This order will be enforced through criminal penalties, under the Disease Control and Prevention Law of 1955 and the Administrative Code of 1929. There may be other penalties that apply under those laws, the Crimes Code, and Liquor Code, but the most directly applicable provision for enforcement of the Governor’s Orders are 71 P. S. § 1409 and 35 P.S. § 521.20(a).
The Governor’s order contains a section specific to Dine-In Facilities. All restaurants and bars may continue to offer carry-out, delivery, and drive-through food and beverage service if they continue with social distancing and mitigation measure to protect workers and patrons. This provision of the order begins on March 19, 2020 at 8 p.m.
If your business isn’t able to work from home, it becomes important to determine if your business falls into the category of life-sustaining business as defined by the Governor. By determining if your businesses industry group is able to continue physical operations, or, if not, work from home will provide some foresight into the potential need to lay off some employees. Life sustaining businesses are allowed to remain open if they follow, at a minimum, the social distancing practices and other mitigation measures defined by the CDC like identifying a workplace coordinator who is responsible for COVID-19 issues, flexible sick leave, environmental cleaning and disinfection. Enforcement of this provision began March 21, 2020 at 12:01 a.m.
The Governor’s chart that supplies information about life sustaining businesses is broken down by Industry, Sector of that Industry, Subsector of that Sector, and finally the industry group within that subsector. After you determine what industry group your business falls into, just follow the chart to see if you are still permitted to be continue physical operations, those that do not have permission are not considered life-sustaining. For example, in the Natural Resources and Mining Industry there are two sectors: 1) Agriculture, Forestry, Fishing, and Hunting, and 2) Mining, Quarrying, and Oil and Gas Extraction. These sectors are then broken down into subsectors. The subsectors for the Agriculture sector include crop production, animal production, forestry and logging, fishing, hunting, and trapping, and support activities for agriculture & forestry. If you believe your business falls within one of those subsectors check to see if one of the corresponding industry groups applies to the work your business performs such as Oilseed and grain farming, fruit and Tree nut farming etc. If one of these does, then follow the chart to see if your industry group is permitted to continue physical operations. In the above example, all industry groups from the subsectors of Crop and Animal Production are permitted to continue physical operations, while none of the Forestry and Logging subsector industry groups rise to the level of life sustaining businesses. If your business is not considered a life-sustaining business, there is the option to request a waiver to be exempt to the business closure.
It is also important to stay informed of the steps the Federal Government is taking in their effort to protect businesses and employees. The Federal Government has passed the Families First Coronavirus Response Act (FFCRA), which requires certain employers to provide their employees with paid sick leave and expanded family and medical leave for specified reasons related to COVID-19. The provisions in this act apply from April 1, 2020 through December 31, 2020. If you are an employer covered under this Act then you must provide paid leave entitlements to your employees. An eligible employee is considered an employee of a private sector employer with fewer than 500 employees, and certain public sector employers. These employees are eligible to receive up to two weeks of full or partial paid sick leave for COVID-19 related reasons. As an employer you may not discharge, discipline, or otherwise discriminate against any employee who lawfully takes paid sick leave or expanded family under FFCRA, files a complaint, or institutes a proceeding under or related to the FFCRA.
Many employers facing economic strain amid this global crisis must still comply with the Worker Adjustment and Retraining Notification Act (WARN) that require at least 60 days’ notice before mass layoffs that will last more than six months. The Federal WARN and Pennsylvania WARN acts apply to companies with 100 or more employees. It is imperative that you take the proper steps to make sure your business is in compliance with these laws as to avoid fines or civil penalties.
There are several loan packages that may be available to you as a small business owner, should you need it. Depending on your company’s situation you should keep yourself aware of the requirements to apply for Paycheck Protection Programs Loans, SBA Economic Injury Disaster Loan (EIDL), or the Standard 7(2) Loan. Keeping your options open as a business owner and taking advantage of the different options the government has rolled out in an attempt to keep businesses afloat is paramount to your business’s ability to successfully come out of this disaster.