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.