Philadelphia Issues “Stay at Home” Order – The Intersection Of the City Order with the PA Order and Defining Essential and Life Supporting Businesses

As you have likely been following, New York and New Jersey have issued similar but slightly different Stay at Home orders over the weekend. Pennsylvania has also issued a “non-life supporting” business physical locations shut down effective as of Friday, March 20, 2020, which list of what constitutes a “life-sustaining” business has been modified twice since the initial announcement so please be sure you are checking for the latest list. If you would like one, do not hesitate to email us and we would be happy to provide you one.

As of March 22, 2020, the City of Philadelphia has declared by Executive Order, a similar Stay at Home Order. Key elements of the Order are noted below or feel free to read the actual text at: https://www.phila.gov/documents/eo-and-explanation-of-prohibition-on-non-essential-businesses/.

1. Prohibition on Operation of Non-Essential Businesses/Activities in Philadelphia

A. Prohibition: People and entities are not permitted to operate a non-essential place of business. This prohibition does not apply to virtual or remote operations (e.g., work from home).

B. Essential Businesses ARE permitted to operate during the term of the Order BUT are required to be observe the Social Distancing Rules stated within the Order.

1. “Essential Businesses” include all Life-Sustaining Businesses in the specific industry groups identified by the Governor of Pennsylvania, specifically those permitted in Natural Resources and Mining; Construction; Manufacturing; Trade, Transportation, & Utilities; Information; Financial Activities; Professional and Business Services; Education and Health Services; Leisure and Hospitality; and Other Services (Except Public Administration) (hereinafter, the “Governor’s Order”).

2. Governor’s List – In determining whether a business is a Life-Sustaining Business, businesses should first refer to the Governor’s Order and the list of Life-Sustaining Businesses noted above. That list has been updated by the Commonwealth to conform with guidance on Essential Critical Infrastructure issued by the Department of Homeland Security, Cybersecurity and Infrastructure Security Agency. The City’s Order should be interpreted to be consistent with the Governor’s Order.

3. Philadelphia Specific – The City of Philadelphia also provided “Philadelphia-specific” definitions and examples of Life-Sustaining Businesses, which are defined as Essential Businesses and Activities below, in appropriate coordination with the Commonwealth. The City’s Order may impose additional public health and safety restrictions above and beyond the Governor’s Order.

A. Essential Retail Businesses and Activities, includes the following:

“Grocery Stores,” including supermarkets, farmers’ markets, convenience stores, and mini-markets; these stores are supposed to discourage non-shopping activity (leisure or idling) and manage store occupancy to allow for social distancing.

“Food Services,” or restaurants limited to providing delivery service or pre- ordering online or via phone (strictly prohibited are walk-in ordering, dine-in service, and mobile food vendors, such as food trucks).

“Automotive Parts, Accessories, and Tire Stores,” including auto-repair shops but not any affiliated car dealerships.

“Gasoline Stations,” including their convenience stores.

“Building Material and Supplies Dealers,” including hardware stores, but NOT lawn and garden stores.

“Electronic Shopping and Mail-Order Houses,” means establishments primarily engaged in retailing all types of merchandise using non-store means, such as catalogs, toll free telephone numbers, or electronic media.

“Other General Merchandise Stores,” except department stores, includes:

1. Hardware stores supplying life-sustaining electrical, plumbing, heating, automotive parts, and other life-sustaining materials.

2. Pharmacies, drug stores, and retailers of prescription or nonprescription drugs, medicines, and essential healthcare products.

“Personal Household Goods Repair and Maintenance,” includes:

1. Emergency or urgent household repairs (HVAC, plumbing, electrical, utilities, life-sustaining household appliances, telecommunications equipment) and repair and maintenance necessary to maintaining the safety, sanitation, and essential operation of home residences;

2. Bicycle or motorcycle repair shops; and

3. Stores primarily engaged in repairing cell phones.

“Home Healthcare Services,” includes in-home or home-based care for seniors, adults, or children (not to be confused with child daycare facilities).

“Postal Service” and “Couriers and Messengers,” includes post offices, local messengers and local delivery, shipping and freight services, package delivery companies that deliver packages to residential buildings and offices, and companies that otherwise provide intercity, local, and/or international delivery of parcels and documents (including express delivery services).

“Dry-cleaning and Laundry Services,” includes laundromats.

Consumer banks and credit unions using drive-through, ATM, and limited lobby services, which are permissible “Financial Activities”.

“Veterinary hospitals and services, and pet stores (which are “Other Miscellaneous Stores”).

“Rooming and Boarding Houses” includes hotels:

1. “Clothing Stores” that only or primarily sell essential uniforms and apparel for medical/healthcare professionals and public safety workers (police officers and firefighters);

2. “Automotive Equipment Rental and Leasing,” includes establishments primarily engaged in renting or leasing passenger cars and trucks; and

3. “Services to Buildings and Dwellings,” includes establishments primarily engaged in exterminating and controlling birds, mosquitoes, rodents, termites, and other insects and pests

B. Essential Infrastructure and Industrial Businesses and Activities:
“Construction” for:

1. All medical, pharmaceutical, and healthcare facilities (including non- emergency construction);

2. All emergency projects or other projects deemed essential by the City of Philadelphia, while appropriately balancing public safety, to ensure the continued delivery of critical infrastructure services and functions by the City (“City Essential Infrastructure Projects”); and

3. Emergency repairs for “Residential Building Construction,” “Nonresidential Building Construction,” “Utility Subsystem Construction” (related buildings and structures for utilities, i.e., water, sewer, petroleum, gas, power, and communication, and all structures that are integral parts of utility systems); “Highway, Street, and Bridge Construction,”

4. “Other Heavy and Civil Engineering Construction,” “Foundation, Structure, and Building Exterior Contractors,” Building Equipment Contractors,” “Building Finishing Contractors,” and “Other Specialty Trade Contractors”

“Transit and Ground Passenger Transportation,” which includes urban transit systems, taxi and limousine services, interurban and rural bus transportation, other transit and group passenger transportation (except Charter Bus Industry), and rideshare services (see Governor’s Order for other categories).

“Air, Rail, Water, Truck Transportation,” and affiliated “Support Activities,” which includes delivery and distribution services, and Philadelphia ports and port- related functions (see Governor’s Order for other categories).

“Waste Management and Remediation Services,” which includes trash collection and essential sanitation or cleaning of public right of ways (e.g., sidewalks and streets) (see Governor’s Order for other categories).

“Broadcasting,” which includes radio and television broadcasting, and cable and other subscription programing (see Governor’s Order for other categories).

“Publishing industries,” which includes newspapers, periodicals, books, magazines, and directory publishers (see Governor’s Order for other categories).

“Telecommunications” (except telecommunications resellers), which includes wireless telecommunications carriers (see Governor’s Order for other categories).

“Manufacturing,” which includes all manufacturing of: food and beverages; medical supplies and equipment; HVAC equipment; plastics, rubber, cement/concrete, iron, steel, ferroalloy, and aluminum; semiconductor, electrical electro-medical, navigational, control instrument components and products (see Governor’s Order for other categories).

“Pharmaceutical and Medicine Manufacturing” is defined to include all essential activities and support activities related to ensuring the availability of in-vivo diagnostic substances and pharmaceutical preparations intended for internal and external consumption in dose forms, such as ampoules, tablets, capsules, vials, ointments, powders, solutions, and suspensions, as well as biological products, such as vaccines, toxoids, blood fractions, and culture media of plant or animal origin.

“Wholesale Trade,” which includes all wholesale trade of: food, groceries, and related products; pharmaceutical medical, healthcare, and wellness products; medical supplies and equipment; life-sustaining public health products; and all permissible Retail Trade products under the Governor’s Order (see Governor’s Order for other categories).

“Professional Businesses and Services,” which includes “Scientific Research and Development Services,” e.g., all essential research and development and support activity relating to Pharmaceutical and Medicine Manufacturing and biotechnology activity (see Governor’s Order for other categories).

C. Essential Healthcare and Social Services Businesses and Activities include:

1. All medical or healthcare related services and support services, including “Hospitals”; “Nursing and Residential Care Facilities”; “Ambulatory Health Care Services” (offices of physicians, dentists, and other health practitioners); urgent care facilities; and mental and behavioral health providers.

2. “Social Assistance” includes businesses that provide essential food, shelter, and critical social services for economically disadvantaged or otherwise needy individuals are not prohibited from providing essential food, shelter, and services; and residential facilities and shelters for seniors, adults, and children.

D. Essential Governmental Functions includes all services needed to ensure the continuing operation of the government agencies and provide for the health, safety and welfare of the public, including City Essential Infrastructure Projects.

E. Essential Educational Functions include:

1. Elementary and secondary schools maintaining preparation and distribution of meals for children (with essential staff only);

2. Colleges and universities supporting residence halls where students are required to be reside (with essential staff only)

Additional Essential Businesses may be determined by the Department of Public Health, consistent with the Governor’s Order, and will be identified at phila.gov/COVID-19.

2. Prohibition on Operation of Office-Based Businesses. The Order specifically states that:

A. No office-based or co-working space business or organization, other than an Essential Business, may operate the business generally with personnel located in such office.

B. Businesses required to suspend physical operations may only have essential on-site personnel to maintain critical functions, such as security, processing of essential operations (e.g., payroll and benefits for employees; maintaining remote technology infrastructure; and facilitating “Facilities Support Services” permitted by the Governor’s Order, which are services such as janitorial, maintenance, trash disposal, guard and security, mail routing, and reception).

C. US Businesses are also permitted to maintain essential on-site personnel to ensure compliance with federal, state and local regulatory requirements, and for the safety and security of essential government services.

Note: All businesses are required to be follow social distancing and COVID-19 mitigation guidance provided by the Center for Disease Control, the Pennsylvania Department of Health, and the Philadelphia Department of Public Health.

3. Other Non-Essential Businesses and Activities:

A. Businesses that are not listed as Essential Businesses or Life-Sustaining by the Commonwealth are non-essential businesses. For the avoidance of doubt, the Order confirms that non-essential retail businesses that are NOT permitted to operate include, among other things, movie theaters, clothing-only stores, fitness clubs (yoga, barre, and spin facilities), personal care salons (hair salons, barbershops, and nail salons), arts and music venues, tour operators, social clubs, night clubs, bars, electronics and appliance stores, amusement facilities, food trucks, ice cream trucks, car dealerships, florists, office supply stores, stationery stores, book stores, furniture stores, gift stores, event halls, and shopping malls.

B. Child daycare facilities are non-essential businesses, unless they obtain a waiver to operate from the Commonwealth of Pennsylvania or the City of Philadelphia.

C. “Legal Services,” specifically the practice of law, is governed by the rules established by the Supreme Court of Pennsylvania and/or the Administrative Office of Pennsylvania Courts. Restricted access to law offices and facilities by legal professionals, staff, and clients is permitted to the degree necessary to allow attorneys to participate in court functions deemed essential by a president judge per the Supreme Court’s order of March 18, 2020 or orders of the courts of the United States, so long as social distancing and other mitigation measures are employed for the protection of lawyers, staff, and clients. Pursuant to the Governor’s Order, all other business are required to conducted remotely; necessary retrieval of files or other materials should be accomplished expeditiously.

D. Operators of non-life sustaining, non-emergency construction in Philadelphia have been given until 5:00 p.m. on March 27, 2020, to make construction sites safe and secure. Contractors are directed to take proper measures to protect adjacent properties, remove or fasten items that are or could become loose, secure sites against trespass, and complete work necessary to protect and ensure the structural integrity of buildings under construction. Occupied residential properties are required to be left in safe and habitable condition.

E. No storefront businesses may open or operate their storefronts unless they are Essential Businesses.

4. Social Distancing Rules

A. Any business operating under and during the term of the Order are required to be adhere to Social Distancing Rules, which include making efforts to maintain at least six (6) feet of space between individuals; frequently washing hands with soap and running water for at least twenty (20) seconds and/or using hand sanitizer, refraining from shaking hands; covering coughs or sneezes with a sleeve or elbow (not hands); and regularly cleaning frequently touched surfaces, such as desks, tables, countertops, computers, phones, and door handles.

B. Businesses permitted to perform emergency household maintenance and repair services under the Order are required to be: require the customer to clean and sanitize the work are prior to arrival; sanitize the work area themselves before and after completing the work; ask that occupants keep a personal distance of 10-feet at a minimum during work; and allow in the residence only the number of workers necessary to complete the emergency maintenance or repair.

5. Gatherings of Individuals:

All public and private gatherings of any number of people occurring outside a single household or living unit are prohibited, except for the limited purposes permitted by this Emergency Order. This portion of the Order does not apply to activities related to Essential Businesses and Activities or Essential Personal Activities, which are required to be observe the requirements of the Order.

6. Stay at Home Order

A. All Philadelphia residents are required to remain home or at their place of residence unless they are engaged in Essential Personal Activities, which include:

1. obtaining essential goods or services from Essential Businesses, such as obtaining pre-ordered takeout food or beverages from restaurants, acquiring groceries, obtaining medical prescriptions or supplies, or any other products from Essential Businesses for themselves, family, household members, and pets;

2. seeking any form of medical attention, including through Essential Healthcare and Social Services Businesses and Activities, or seeking assistance from law enforcement or emergency services for themselves, family, household members, and pets;

3. caring for family members, friends, or a pet in another household, including delivering essential goods or obtaining emergency services and attention;

4. reporting to or performing their essential jobs related to Essential Businesses and Activities, Essential Minimum Operations, Essential Government Functions, or any other working activities permitted in the Order;

5. walking, running, cycling, operating a wheelchair, or engaging in outdoor activities with immediate family members, caretakers, household members, or romantic partners while following Social Distancing Rules with other individuals, which includes staying six feet apart;

6. leaving the home for an educational, religious, or political reason;

7. leaving because of a reasonable fear for health or safety;

8. leaving at the direction of law enforcement or other government agency; and

9. engaging in any other activities or performing tasks essential to health and safety, or to the health and safety of themselves, family, household members, or pets

7. Exemptions from the Governor’s Order

A. In extenuating circumstances, special exemptions to the Governor’s Order will be granted by the Commonwealth. Businesses seeking a waiver should comply with the Governor’s Order and suspend in-person, physical operations until a waiver is approved and provided.

B. Businesses performing Essential Governmental Functions, including essential Construction for the City of Philadelphia need not obtain an exemption from the Commonwealth.

We will continue to track local and national information and report as new news becomes available through our COVID taskforce web-page which can be found at: https://www.duanemorris.com/practices/coronavirus_covid_19.html.

If you have questions or concerns, please do not hesitate to email any of our COVID task force members and we will find the applicable person on our team who can assist you. bamolotsky@duanemorris.com; dcanderson@duanemorris.com; jsegal@duanemorris.com; or slcaffrey@duanemorris.com.

Be safe.