March 2020 - Page 2 of 2

COVID-19-Clarification of Shutdown Order as it Relates to Local Governments

Enforcement of the Order Delayed Until Monday

Due to the high volume of waiver requests, the Wolf Administration is delaying enforcement of Governor Tom Wolf’s order and the Secretary of Health’s order (the “Shutdown Orders”) that all non-life-sustaining businesses in Pennsylvania must close their physical locations to slow the spread of COVID-19.

Per the Shutdown Orders, businesses that were non-life sustaining were ordered to close their physical locations on March 19, at 8:00 PM. This order stands, only the enforcement timing will change and become effective on Monday, March 23, at 8:00 AM.

Local Governments may Continue Limited In-Person Operations

The State has clarified that local governments are not required to suspend in-person operations but should curtail in-person operations to the extent practical and follow COVID-19 safety precautions. What does that mean for local governments? Our thoughts are:

Arrangements should be made for emergency calls to your municipality to report road problems or other problems that may need immediate assistance.
Public works crews should continue to perform road maintenance and repairs, especially where the repairs directly relate to road safety.
Sewer and water systems should continue to perform maintenance and repairs to infrastructure as needed.
New construction projects should be delayed, unless the project will be critical to the public health and safety. Please contact us if you have specific questions about projects or bid awards.
Bidding for summer road materials and projects can continue. We can advise you how to get bid packages approved and advertised. Local governments will need to keep bidding for materials so the materials are available when normal operations resume. The construction companies and material suppliers we have talked to will keep their estimators working as long as they can.
Municipal offices should continue to provide trash bags for tag-a-bag customers with appropriate cautions for pick-up.
Building permit review offices are closed for now. Your building codes official should not accept new applications for building or occupancy permits until those offices open again.
The Shutdown Order does not automatically extend deadlines for Right-to-Know Law requests. If you receive requests, your public records officer should send out a 5-day response letter requesting more time due to a lack of staffing to respond.

Local Governments Should Balance Public Health and Safety with the Need for Critical Services When Enforcing the Shutdown Order

The State has also acknowledged what we all knew – The list of life-sustaining businesses to remain open is not exhaustive. We have been advising clients to use judgment in determining what operations and businesses are critical. The State has now clarified that local governments should use judgment enforcing the Shutdown Order. Local governments are not mandated at this time to enforce the Shutdown Order, but have the right to do so at their option. You should balance the public health and safety with the continued delivery of critical infrastructure and resources. Here are a few recommendations:

Enforcement against public gatherings should be prioritized. We recommend that police be called to first to disband any public gatherings.
For other work that should be shutdown but is not an immediate health and safety issue, your zoning or codes enforcement office can issue a cease and desist order.
We recommend progressive enforcement starting with a warning, then a cease and desist order, then a citation.

What are the Penalties for a Violation of the Shutdown Order?

The Shutdown Order has been issued by the Department of Health in conjunction with the Governor’s Office. Violations of orders issued by the Department of Health are subject to the enforcement penalties of 71 P.S. § 1409:

Every person who violates any order or regulation of the Department of Health, or who resists or interferes with any officer or agent thereof in the performance of his duties in accordance with the regulations and orders of the Department of Health, shall, upon conviction thereof in a summary proceeding before a justice of the peace, alderman, or magistrate of the county wherein such violation or offense is committed, be sentenced to pay a fine of not less than ten ($10.00) dollars and costs nor more than fifty ($50.00) dollars and costs, such fine to be paid to the county in which the violation or offense is committed. In default of payment of such fine and costs the offender shall be sentenced to be confined in the proper county jail for a period of thirty days.

Violators may be cited by your local police or codes enforcement officer. Citations will be prosecuted after the Shutdown Order is lifted and the magisterial district courts open back up for business.

The Shutdown Order may also be enforced by the Pennsylvania Department of Health through the Pennsylvania Disease Protection and Control Law of 1955, 35 P.S. § 521.1-521.21. The Act provides for certain fines and penalties for violations of disease control orders.

Please feel free to call or email Andy Miller (amiller@mpl-law.com) or Doug Myers (dmyers@mpl-law.com) if you have any questions about these matters. Our office is closed, but our email and cell phones are working!

March 20: Municipal Law Coronavirus Update

Public Construction Projects

According to Governor Wolf’s March 19 Order, any Building Construction; Highway, Street or Bridge Construction; Utility Subsystem Construction; Land Subdivision; Other Heavy and Civil Engineering Construction should have ceased as of 8 pm last evening. Enforcement will supposedly begin at 12:01 am on March 21. However, leasing of construction machinery may continue. Most transport services may continue. Utility systems may also continue to operate. Therefore, critical maintenance and repair (including rental of equipment for projects) should be allowed to continue. Public works departments can perform maintenance work and make critical repairs to water and sewer systems. Roadway maintenance and repair is not specifically listed, but we believe road crews can (and should) make critical repairs to maintain safe highways.

Trash Collection

Trash hauling and collection is allowed to continue. You may want to contact your respective carrier about collection schedules. As far as we know, they intend to continue with business as usual as long as they have workers to man the trucks.

Local Emergency Declarations

Pennsylvania’s Emergency Management Act (the “Act”) allows a local governing body to declare a local disaster emergency upon finding a disaster has occurred or is imminent. The local governing body may also authorize a manager or other chief executive of the local government to declare a local disaster emergency subject to ratification by the governing body. The local disaster emergency proclamation can be made for up to seven (7) days at a time. A local disaster emergency proclamation does several things to aid municipal staff to respond to an emergency:

Municipalities have the power to enter into contracts and incur obligations necessary to disaster emergency management, response and recovery.
Bidding requirements for supplies and services needed to respond to the disaster are suspended.

The proclamation should be given prompt and general publicity but there is no specific advertising requirement. Newspaper advertising is not necessary. Posting notice on your website and social media site as well as at the municipal building will be adequate.

Governing Boards should consider this action, especially given the challenges of the holding public meetings for official action on procurement. The proclamation can be made in an emergency meeting, so long as minutes are recorded to be subsequently ratified in a public meeting.

Price-Gouging for Emergency Supplies

On March 6, 2020, Attorney General Shapiro alerted Pennsylvania consumers and businesses about price gouging protections under Governor Wolf’s COVID-19 disaster declaration for the Commonwealth of Pennsylvania. In addition, the Office of Attorney General has created a specialized resource (pricegouging@attorneygeneral.gov) for consumers to email and report malfeasance.

Governor Wolf’s declaration triggered protections under state law against price gouging for consumers and businesses. Under rules governing a disaster emergency, companies and vendors are prohibited from charging a price for consumer goods or services that exceeds 20 percent of the average price to which those goods or services were sold for in the 7 days preceding the date of declaration.

From March 19: Order Requiring Shut-down of All Non- Life-Sustaining Businesses

Governor Wolf issued an Order late today that requires the shutdown of all non-life sustaining businesses as of 8:00pm this evening for an indefinite period of time. The Order will be enforced beginning 12:01 am on Saturday. This Order applies to any business that is not a life- sustaining business regardless of whether the business is open to the public. A copy of the Order and list of life-sustaining businesses is attached with this update.

This means all places of businesses should be closed after tonight other than those that are life-sustaining businesses. The Order does not expressly address municipal government offices as a specific type of office. Basic services such as sewer and water plants are considered life- sustaining operations. Road support crews are also life-sustaining operations. Office Administrative services are not life-sustaining services and should be closed per the Order.

Public meetings cannot be held in person. Telework is allowed to continue so presumptively virtual public meetings or public meetings by conference call are allowed.

Stay tuned because we expect a federal order to follow as well which will institute a broader mandatory shutdown.

Frequently Asked Questions

As we receive questions from our client base, we will continue to provide updates to you on our advice. We hope this answers some of the questions each of you may have and also helps you identify questions others have that may be applicable to your municipality.

What paid leave rules apply to employees who contract COVID-19 and must be quarantined?

These rules are rapidly evolving. On March 18, 2020, President Trump signed the Families First Coronavirus Response Act into law. This law expands the Family and Medical Leave Act protections to cover care for children who are home due to school closures. The first 10 days of leave will be unpaid, but employees may use paid leave during this time. After 10 days, the employer must pay the employee at 2/3rds the regular pay rate, which is capped at $200 per day or $10,000 in total.

President Trump also signed the Emergency Paid Sick Leave Act which requires employers to offer extended sick leave for direct quarantine for coronavirus or quarantine because a family member is positive for coronavirus. An employee who is quarantined must get two weeks paid sick time leave capped at $511 per day or $5,110 total for their own illness and $200 per day or $2,000 total for time needed to care for a family member.

As of 5 pm today, Governor Wolf ordered a state-wide mandatory shutdown of non-life sustaining businesses. It is not immediately clear if this constitutes a quarantine or isolation order triggering the emergency Paid and Sick Leave Act provisions.

How do we pay bills if we cancel our meeting?

Bill payments that can be postponed until a future public meeting should be postponed. Bills that are on a payment cycle may still need to be paid even if the public meeting is canceled. We suggest that you prepare the regular invoice list that would be provided to all Board/Council members ahead of a public meeting. Set a time period for Board/Council members to contact your municipal staff with any questions. Make a plan for who will sign checks for the bills that must be paid and when the checks will be signed. At the next public meeting, all interim payments must be ratified by inclusion on the bill payment list that is approved at the meeting.

What do we need to do if we hold an emergency meeting to address COVID-19 concerns?

The Sunshine Act expressly permits emergency meetings without public notice to address matters of imminent threat to health and safety. It is safe to assume COVID-19 response issues fall within this category of imminent threat. Minutes must still be taken at an emergency meeting. You may deliberate and take action. The minutes should be approved and publicized at the next public meeting. This will make the substance of the emergency meeting public and will ratify the actions identified in the minutes.

How should we staff critical functions?

Some municipal functions can only be performed by a subset of employees. Sewer plants and water treatment facilities must be operated by certified operators. Because COVID-19 is highly contagious, a contingency plan should be in place to make sure not all of your operators are infected at the same time. You should:

Monitor your staff to make sure no one shows symptoms of the virus. Observe best practices to reduce infection such as face masks (if you can get them) or frequent disinfection. Disinfect key pieces of equipment between shifts that may be touched repeatedly.
Try to avoid cycling all of your operators through the same facility whether together or in shifts. COVID-19 will survive on surfaces from one shift to the next so those operators do not have to be together to be infected.
Have a contingency plan if your regular operators become infected and must be quarantined. This may include keeping an operator isolated from other operators and the facility to reduce the risk of everyone being infected. Also you may want to contact retired operators to see if they could be available in an emergency.

Should we take any specific precautions with staff that travels on vacation?

Any vacation requests typically need to be approved by a supervisory staff member. Employees should be discouraged from traveling except when critically necessary. Staff who choose to travel should be advised that on return they may be required to get tested before returning to the work force. They could be required to quarantine before returning to work, which would be subject to the new Emergency Paid Sick Leave Act. Communicating the risks and complications of travel at this time, especially travel internationally or to areas of the country that may be infected, may help ease concerns and discourage unnecessary travel.

Please feel free to call or email Andy Miller (amiller@mpl-law.com) or Doug Myers (dmyers@mpl-law.com) if you have any questions about these matters.

COVID-19 AND THE SUNSHINE ACT

On March 6, 2020, Governor Wolf issued an emergency disaster declaration due to the COVID- 19 health crisis. Such a declaration creates greater flexibility for municipalities to comply with the Sunshine Act with regard to public meetings. Therefore, municipalities may want to consider physically closing meetings to the public, but keeping them open to the public via conference call (or similar means). Conference call meetings must be carefully administered so as not to run afoul of the Sunshine Act. You should also consider the logistics and be sure any method chosen to conduct the meetings has been tested beforehand.

We have included with this memo guidance from the PA Office of Open Records, and we have summarized that guidance below.

Now that Governor Wolf has issued an Emergency Declaration, municipalities may hold meetings via teleconference, webinar, or other electronic method that allows for two-way communication. The two-way communication is key. Public participants must be able to hear and be heard. Moderating such a meeting will present new challenges such as clearly identifying for the public who is speaking and ensuring that the public has an opportunity to speak on current business. The proposed media or forum for the meeting should be tested ahead of the meeting, including the public accessibility.
Municipalities having conference call meetings must provide a reasonably accessible method for the public to participate and comment pursuant to Section 710.1 of the Sunshine Act. That method should be clearly explained to the public by a newspaper advertisement, website, Facebook (if applicable), and posting at municipal offices in advance of the meeting. We can assist municipalities with the language of the notice at your request.

March 17, 2020 Page 2 of 2

The Office of Open Records strongly recommends that any municipality holding such a meeting record the meeting and proactively make the recording available so that a full and complete record of the meeting is available to the public.
Our firm is able to provide conference call-in numbers to you free of charge, so please let us know if you want to advertise a call-in number for residents to use in order to “attend” supervisor or council meetings. Obviously, postponing or canceling meetings is also an option. However, you should remember that deadlines for municipal actions are not automatically postponed (such as action on plans, zoning hearings, notices of violation, etc.), and appropriate time waivers should be obtained.

Please feel free to call or email Andy Miller (amiller@mpl-law.com) or Doug Myers (dmyers@mpl-law.com) if you have any questions about these matters.

COVID-19 NON-ESSENTIAL GOVERNMENT OFFICES

On March 16, 2020, Governor Wolf issued an order for all “non-essential government offices” to close as of March 17. Unfortunately, the Governor did not provide many additional details as to which “offices” should be considered non-essential (although residents will be glad to know that trash collection should continue uninterrupted). As such, we suggest municipalities take the following steps:

1. The governing board and staff should hold an emergency meeting to begin to develop a coronavirus emergency response plan. You should also include your emergency management coordinator in the meeting. We are attaching a publication put out by PMAA on some things to consider in an emergency response plan for the coronavirus.
2. Municipalities should, if possible, cancel or postpone any public meetings scheduled for the next two weeks. Boards should remember that deadlines for action are not automatically extended to the crisis, so time waivers should be requested if needed. We believe the Board may make this decision by majority vote either through email or by an emergency meeting of only municipal officials. Notice that a meeting is canceled or postponed should be posted at the municipal building, posted on the website and social media (if applicable), and announced to local TV and radio stations (similar to closures due to weather emergencies). If the meeting is being postponed to a date other than the next regular meeting date, the postponement and rescheduled date must also be advertised in the newspaper at least 24 hours in advance of the rescheduled meeting date.
3. Alternatively, if you must meet to conduct essential business, you may want to call an emergency meeting (for critical business) or limit meetings to only the essential business and accept written reports from staff to reduce attendance. Public comment may be limited to only the action items on the agenda. Municipalities may also holding meetings via conference call or other virtual means. We are circulating a separate memo to address that issue under the Sunshine Act.
4. Based upon the recommendations from the CDC, OSHA, and Governor Wolf, we recommend municipalities implement procedures for closing the offices to the public, canceling in-person staff meetings or meetings with vendors in exchange for telephone or video conferencing, rotating in-office staff so that there are never more than 10 employees present at any one time, and implementing social distancing guidelines of keeping at least 6 feet from others at all times. This is not an exhaustive list of recommended actions— municipalities should feel free to consider the specific nature of their offices to determine how they can both complete the necessary governmental functions while limiting direct contact with others that may increase the likelihood of spreading the virus.
5. Employees should be limited to essential staff. Identify which employees have in the past been considered essential during weather emergencies. Although the current situation has some significant differences from a weather emergency, using past practices should give municipalities a good baseline place to start for determining which employees are to be considered essential. The most obvious example of an essential office is the police department. However, within the police department, there may be certain tasks/services that can be performed remotely or postponed that should be considered (see more below).
6. The Governor’s order permits the continuation of outdoor construction activities (with proper precautions being observed), so road and water/sewer crews may continue to work on such construction projects as needed. If the crisis has created less work for the crews such that furloughs and/or wage reductions may be required, we suggest contacting your labor attorney or our office to help ensure compliance with any relevant wage-hour laws under FSLA and any collective bargaining agreements.
7. Relatedly, although office staff may not normally be considered essential during weather emergencies, because of the extended nature of the current crisis (a minimum of at least 14 days), certain staff may be considered essential for a day or two a week in order to perform necessary payroll or billing tasks. Each municipality will have to evaluate its current work structure and use its best judgment in making these determinations. Helpfully, at this point, the state will not be enforcing the order; rather, everyone is being asked to “self-enforce” the order. As noted above, if the crisis has created less work for the office staff such that staffing furloughs and/or wage reductions may be required, we suggest contacting your labor attorney or our office to help ensure compliance with any relevant wage-hour laws under FSLA and any collective bargaining agreements.
8. In addition to the consideration of essential vs. non-essential employees, based upon the recommendations from the Centers for Disease Control and from Governor Wolf, employees are being asked to work from home whenever possible. If your municipality is equipped to have staff work remotely, we suggest this to be done to the extent possible. If/when essential employees must go to their respective offices, OSHA has put forth guidelines (see below) that should be followed to maximize employee safety and to minimize the risk of transmission of disease. Although the guidelines do not create any “new legal obligations”, municipalities should be aware that, as an employer, they always have an obligation to “provide their employees with a workplace free from recognized hazards likely to cause death or serious physical harm”.
9. We are attaching guidance recently issued by OSHA for COVID-19 for your more careful review. In summary, the guidance contains the following main sections:
  1. Information on COVID-19 and its transmission.
  2. Information about how an outbreak could affect places of work.
  3. An extended section on steps employers can take to reduce employee risk of infection. This section is especially practically important because it urges employers to review and implement various work plans and standard operating procedures to limit or prevent disease transmission. These include the following:
    1. Disease preparedness and response plans.
    2. Basic disease prevention measures.
    3. Policies and procedures for prompt identification and isolation of sick people.
    4. Implementation of workplace flexibilities and protections such as encouraging sick employees to stay home, not necessarily requiring doctor’s notes for certain employee illnesses to prevent strain on the healthcare system, etc.
    5. Implementation of certain workplace controls as appropriate (avoiding where possible close working environments, wearing masks or other personal protective equipment, etc.).
    6. Identification of various risk levels for employees and implementing policies and procedures to minimize risk of infection where possible.
10. Emergency meetings of municipal officials may be called as necessary to conduct essential business because the state of emergency declaration relates to a health crisis that does present a clear and present danger to life or property. Only essential business should be conducted in emergency meetings.
11. Finally, we suggest each municipality continue to monitor the situation as the directives from the government have been changing rapidly as the crisis evolves. At this point, the Governor’s order asks for voluntary cooperation, but depending upon the progression of COVID-19, enforcement measures could be implemented at any time. We will continue to monitor the situation and will provide updates as necessary.

Please feel free to call or email Andy Miller (amiller@mpl-law.com) or Doug Myers (dmyers@mpl-law.com) if you have any questions about these matters.