Wolf Amends the Occupancy Limit Calculation for Events and Gatherings...Here's What it Means for Employers
On October 6, 2020, Governor Wolf signed an Amendment to the July 15, 2020 Order that directed the Targeted Mitigation Measures. Briefly, the July 15, 2020 Order required, among other things, that indoor events and gatherings could not exceed 25 people, and outdoor events and gatherings could not exceed 250 people.
The Governor has amended Section 3 of the July 15 Order, which is the section related to events and gatherings. The new requirements are as follows:
INDOOR EVENTS AND GATHERINGS
The new standard is based on maximum occupancy of a space.
Where the maximum occupancy is 0-2,000, the allowable indoor rate is 20% of the maximum occupancy.
Where the maximum occupancy is 2,001-10,000, the allowable indoor rate is 15% of the maximum occupancy.
Where the maximum occupancy is over 10,000, the allowable indoor rate is 10% of the maximum occupancy, with a maximum of 3,750.
OUTDOOR EVENTS AND GATHERINGS
The standard for outdoor events and gatherings is also based on the maximum occupancy for the event, which is set by the Fire Code.
Where the maximum occupancy is 0-2,000, the allowable outdoor rate is 25% of the maximum occupancy.
Where the maximum occupancy is 2,001-10,000, the allowable outdoor rate is 20% of the maximum occupancy.
Where the maximum occupancy is over 10,000, the allowable outdoor rate is 15% of the maximum occupancy, with a maximum of 7,500 people.
Before going any further, it must be noted that Philadelphia has not adopted these new standards. According to Dr. Farley, the City Health Commissioner, an update may be forthcoming on October 13. Philadelphia businesses…stay tuned.
What is an Event or Gathering?
The Order, and press release, provide a specific definition for an event or gathering:
[A] temporary grouping of individuals for defined purposes that takes place over a limited timeframe, such as hours or days, including fairs, festivals, concerts or shows and groupings that occur within larger, more permanent businesses, such as shows or performances within amusement parks, individual showings of movies, business meetings or conferences, or each party or reception within a multi-room venue.
According to this definition, businesses that put on a “business meeting or conference” must adhere to these new standards. However, employers must remember that these new parameters only apply to events and gatherings, not every day meetings. Let’s look a bit deeper….
The Governor explains that the following is NOT considered an event or gathering:
Groups of people who share a space within a building in the ordinary course of operations, such as in an office building, classroom, production floor or similar regularly occurring operation of a business or organization.
The Governor goes on to direct that when a business is not hosting an event or gathering, the restrictions in the Green Order (and thereby the Pennsylvania Business Guidance) applies.
What does this Mean for Employers?
Businesses may host an event or gathering, so long as they comply with the restrictions set forth in the Amended Order, and expounded upon the FAQ. Of note, is that the state requires that the event host must maintain a list of all guests in attendance including phone numbers and expected location 14 days after the event. The state furthered that this information is, “critical for contact tracing or further outreach.” So, if an employer is going to host an event, be sure to collect such information.
Beware of Take Home Liability…
As quick little tangent…. as businesses consider hosting holiday parties or hosting larger conferences, business should be aware of a new theory of liability against employers called, “take home exposure.”
To date, there have been two lawsuits out of Illinois under what is known as “take home liability.” This is where employers are sued because an employee’s family member incurred damages (or died) due to COVID-19. These cases mimic the asbestos cases where a family member/spouse of an employee gets mesothelioma or lung cancer, and then sues the family member/spouse’s employer. Both of these cases are out of Illinois, but there are telling for what employers across the country need to aware of. The issue in these cases are whether the businesses failed to implement safety measures, which lead a worker to get sick and infect a family member.
While arguably a holiday party is not “work” rather a special occasion and an “event or gathering,” there is potential for exposure under this “take home liability” theory. There could be risk where an employee feels obligated to attend a holiday party and bring their family to same.
If a business decided to host or plan an event or gathering, the business must (1) ensure that the venue and host are abiding by the applicable orders, and the (2) specific industry guidance.
Normal Business Meetings Must be Under 10 People
So while businesses can technically hold events and gatherings, all other normal business meetings must adhere to the PA Business Guidance, which still limits in-person meetings to 10 people. However, any meetings that are taking place within the ordinary course of the business day, must adhere to the (1) PA Business Guidance, (2) the Green Order, (3) the April 15 Secretary of Health Order, (3) the April 5 Secretary of Health Order, and current (and future) guidance from the CDC. (For more info on these standards, check out my previous blog on the Green Order, and the April 15 Secretary of Health Order.)
Employers should consult with counsel when preparing an event or gathering to ensure that exposure to liability is as limited as possible.