July 15, 2020 Executive Order Requires Teleworking Unless it is Impossible

On July 15, 2020, Governor Wolf issued an Executive Order Directing Targeted Mitigation Measures for the Commonwealth. (NOTE: The Secretary of Health issued a corollary Order that includes identical language to the Governor’s Order.) The Order includes provisions that apply specific businesses include, bars, restaurants, catered events, nightclubs, and gyms and fitness facilities. This blog will focus on Section 4 of the Order which relates to Teleworking.

EXECUTIVE ORDER

Section 4 of the Executive Order reads:

Unless not possible, all businesses are required to conduct their operations in whole or in part remotely through individual teleworking of their employees in the jurisdiction or jurisdictions in which they do business. Where telework is not possible, employees may conduct in-person business operations, provided that the businesses fully comply with all substantive aspects of: the Order of the Secretary of the Pennsylvania Department of health Directing Building Safety measures, issued April 5, 2020; the Order of the Secretary of Pennsylvania Department of Health Directing Business Safety measures (to keep employees and customers safe), issued April 15, 2020; and all existing and future applicable guidance issued by my Administration, the Department of health and the Centers for Disease Control and Prevention.

(NOTE: See my previous blog on the Secretary of Health’s April 15, 2020 Executive Order.)

When read as a whole, Section 7 indicates that all businesses must telework if it is possible. Let’s break it down…

Section 4 begins with the sentence that reads:

Unless not possible, all businesses are required to conduct their operations in whole or in part remotely through individual teleworking of their employees in the jurisdiction or jurisdictions in which they do business.

When read on its own, this sentence seems to say that companies can conduct work in-person so long as a some of the workforce is working remotely.

However, the next sentence eliminates any wiggle room for employers to conduct in-person business. The second sentence reads:

Where telework is not possible, employees may conduct in-person business operations, provided that the businesses fully comply with all substantive aspects of [Orders of the Governor and the Secretary of Health.]

This sentence makes clear that businesses may conduct in person business only when telework is not possible.  It follows that a company may operate remotely “in part” only when telework is not possible. If an employee is able to work remotely, then they must work remotely.

DEPARTMENT OF HEALTH GUIDANCE

The Pennsylvania Department of Health posted an FAQ that clarifies the Order.  The DOH Explicitly states:

• Unless not possible, all businesses are required to conduct their operations remotely through individual teleworking of their employees in the jurisdiction or jurisdictions in which they do business.

• Where teleworking is not possible, employees may conduct in-person business operations, provided that the business fully complies with the Orders (of the Governor and Secretary of Health).

Teleworking is Not a Suggestion, it is an Order

The DOH is clear that teleworking is a requirement, not a suggestion. (“Teleworking when at all possible is a requirement, per the Order.”)

If Employees Were Teleworking in the Red and Yellow Phase, those Employees Should Return to Teleworking

The DOH makes very  clear that if the employees were teleworking in the Red and Yellow Phases, then the employees “should return to teleworking.”  When read carefully, we observe that the DOH used the word “should” instead of “must.” The Commonwealth is affording employers some wiggle room in the event circumstances have changed where teleworking has become impossible. Employers should consult with counsel when assessing whether the circumstances have changed since the Red and Yellow phase and employees cannot return to teleworking.

Generally, when read in conjunction with the Executive Order and the other FAQ’s, employees who are able to work remotely must return to work remotely.

Life Sustaining Businesses and Those That Received Exemptions

Companies that were deemed a life sustaining business during the Red Phase, or received a waiver to continue working during the Red Phase are not exempted from the teleworking requirement. The DOH is explicit in that life-sustaining businesses and those that received a waiver cannot disregard the order to telework.

Final Thoughts

Employers must keep track of the Executive Orders and Guidances as they are issued. The Guidances and Orders are documenting the standard of care that employers must take.

This July 15, 2020 Order issues a fairly simple rule for employers: If employees are able to work remotely. They must work remotely.

Employers must be able to justify and explain the impossibility of employees who continue to conduct business in-person while this order is in effect.

Lastly, it is prudent for employers to have a COVID Policy that documents the safety protocol in place for the employees who are working in-person.