Philly Emergency Order Imposes Individual Liability

Howard K. KurmanPrincipal, Offit│Kurman

On November 18, 2020, the Mayor of Philadelphia released the Executive Order Concerning Additional Limitations on Visiting, Gatherings, Events and Businesses for Fall/Winter 2020-2021. The Order addresses the following activities:

  1. Indoor/Outdoor Social Gatherings of Persons from Different Households
  2. Educational Setting,
  3. Restaurants and Catered Events
  4. Retail Stores, Personal Care Services and Office-Based Settings
  5. Religious, Cultural, Recreational, Sports and Entertainment Activities
  6. Physical Recreation and Activities

The Order also explains the possible liability for individuals and business owners along with additional mask requirements. This blog focuses on the implications for businesses. Consult the Order for industry specific restrictions.

THIS ORDER IS EFFECTIVE NOVEMBER 20, 2020 AT 5:00 PM

THIS ORDER SHALL EXPIRE AT THE END OF JANUARY 1, 2021

RETAIL STORES, PERSONAL CARE AND OFFICE-BASED SETTINGS: DENSITY REQUIREMENTS

All businesses, non-restaurant retail and personal care service establishments, as well as indoor shopping malls must maintain density limits of no more than 5 people per 1,000 square feet of “Occupiable Space.”

NOTE: The Executive Order seems to have a typographical error as it reads, “…must maintain density limits of no more than 5 people per 1,000 square feet of occupiable space, as further defined in, and except…” The Order does not define “Occupiable Space.” However, it is important to look at the choice of words in this Order. The Order does not read, “total square footage.” In other words, it seems that the Order wants employers to look at the amount of space that is “occupiable” and based the density limit off of that. Businesses should consult with counsel regarding a prudent and compliant way to measure and calculate the limits for each space.

REMOTE WORK

The Order is explicit that all, “office-based settings that [do] not involve the direct provision of services (such as medical services) must generally continue to be conducted remotely, and only those on-site business operations that are not conducive to operating remotely may be conducted on-site, all as required pursuant to the…Yellow Phase Order.

All businesses who can work remotely, must work remotely. See my analysis of the Yellow Order, here.

SIGNS

Businesses must post signage that advises of the health and safety requirements.

FACE COVERINGS

The Order amends the June 26, 2020 Philadelphia Mask Order and makes it more expansive than the previous order. In addition to the requirements of the June Order, the following applies:

  • Individuals must wear a mask at all times when they are in the same room with or are otherwise in the company of a person who lives in a different household.
  • Individuals must wear a mask at all times when they are likely, in the near future, to encounter a person from another household, whether indoors or outdoors

Employers must incorporate these amendments into their COVID policies.

LIABILITY

Most notably, the Order imposes potential individual liability for violations of the Order with respect to Face Coverings and the Density Limit (5 ppl. per 1,000 sq. ft.) requirements explained above.

The Order is explicit:

The owner, operator or host of any business, facility, workplace or gathering or event location shall also be liable and subject to fines and penalties under this Order for non-compliance by employees, customers, members, visitors and any other occupants of the business, facility, workplace or gathering or event location…subject to fines and all other remedies under this Order.

This is a big deal. Let’s discuss…

EMPLOYER LIABILITY FOR EMPLOYEE NON-COMPLIANCE

When read closely, this means that the owners of a business can be liable and subject to fines and penalties for their employees’ non-compliance. Businesses should ensure that they have strong disciplinary terms included in their COVID Policies.

BUSINESS LIABILITY FOR VISITORS AND CUSTOMERS

Businesses that do not enforce this Order, can be liable and subject to fines and penalties for the non-compliance of customers and visitors.

Businesses must have protocol in place for enforcing compliance, otherwise they risk fines and penalties because of the actions of the customers and visitors.

INSPECTIONS

Per the Order, “owners, operators and individuals in possession of any facility subject to this Order must allow inspection of ongoing operations as a condition of operation.”

Bottom Line: If any inspector arrives at your premises, you must accommodate.

PENALTIES AND FINES

The Order takes it to the next level when instituting penalties. The Order reads that failure to comply “shall result in” the following:

What does this mean?

Employers must update their COVID policies and procedures to reflect the new requirements of the Order. Employers can also explore terms and language to protect and recoup any monetary damages related to violations of their employees.