In conjunction with Carnegie Mellon University, the commonwealth will create a decision model based on data analysis to “enable a balance between maximizing the results of our economy while minimizing public health risks.” This tool will help better understand the current health and economic status, as well as the inherent risks and benefits to easing restrictions by sector and region.”
Ruling out broad re-openings, the commonwealth outlined a three-phase multi-colored matrix: the “red phase,” “yellow phase,” and the “green phase.”
All of Pennsylvania is currently in the red phase, which only allows life sustaining business to be opened, congregate care and prison restrictions in place, and in person education closed. As the red phase continues, the commonwealth will monitor public health indicators, and adjust orders and restrictions specific to each region, as necessary.
As the data is analyzed, a joint and unanimous decision by the Governor, Secretary of Health, the PEMA Director and Secretary of the DCED is necessary to determine whether a region or industry qualifies to move into the next phase of the matrix.
The yellow phase requires telework to continue where feasible, in person business operations must follow business and building safety orders, and childcare centers and congregant care may open with restrictions. Schools must remain closed. In-person retail is allowed with curbside and delivery preferred, restaurants and bars are limited to carry-out and delivery, indoor recreation facilities, health and wellness facilities, and entertainment facilities (casinos and theaters) must remain closed. During this phase, public health indicators will be monitored, and restrictions can be imposed or loosened. The yellow phase is meant to “facilitate a return to a ‘new normal.’”
The green phase allows all businesses to open while following CDC and Pennsylvania Department of Health Guidelines. In addition, aggressive mitigation orders are lifted. It is fully expected that CDC and Department of Health Guidelines for individuals will remain in place; and based on public health monitoring orders/restrictions will be adjusted, as necessary.
The phases will be implemented on a region-by-region basis based upon the data tools explained above. Using Department of Health’s districts, the commonwealth will consider the incidence rate of COVID-19 cases per capita. Governor Wolf specifically mentioned an average of less than 50 cases per 100,000 individuals over the course of 14 days. In addition, the region must have enough tests, robust case investigation and tracing infrastructure, and identification of high-risk settings (corrections facilities, personal care homes, etc.).
Governor Wolf’s plan is not industry-based, meaning that it does not separately evaluate the safety factors related to construction over retail, etc. Rather, the data tool will consider industries that are more susceptible to the spread of COVID-19 and/or industries more vulnerable to changing economic conditions. Per Governor Wolf, the administration will continue to work with industry stakeholders, labor, and healthcare professionals regarding opening and safeguards. As a first step, Governor Wolf published a statement allowing for “public and private residential and non-residential construction” to resume statewide beginning May 1. These organizations will need to comply with existing guidance and forthcoming guidance from the Governor. Also, these businesses should also consider local guidance regarding reopening.
It is important to understand that while many reports indicate a May 8 reopen date, no region is guaranteed to proceed to the yellow phase by that date. All forthcoming decisions will be based on the data analysis, which considers case rate, hospital capacity, and the types of local industries and how likely they are to comply with the guidelines. Further, the Commonwealth reserves the right to shut down a previously opened region if cases begin to rise.
As Governor Wolf set the hopeful May 8 reopening date for several areas of the commonwealth, he dispelled any notion that the Philadelphia region would be ready to open that soon. The capacity of the city and the need to ensure proper testing, investigating, and tracing capabilities will undoubtedly make the reopening a difficult decision for the commonwealth.
While organizations will need to follow the ongoing updates to the commonwealth’s guidance regarding the reopening plan, they can begin to think about who on their team will be best suited to add a new title on their business card. A requirement to reopening is that the organization must name a “Pandemic Safety Officer” who will be responsible for “carrying out the COVID-19 safety procedures set forth in [the Commonwealth’s] guidance.”
The Coronavirus Task Force at Klehr Harrison stands ready to assist you in your business and legal needs. We will continue to provide additional information and guidance as the COVID-19 situation develops.
Author Gaetano Piccirilli is a partner in the Litigation Department at Klehr Harrison.