Late on March 19, 2020, Pennsylvania Governor Tom Wolf issued an Order closing all businesses in the Commonwealth of Pennsylvania that are not “life-sustaining.” Specifically, the Order prohibits the operation of “a place of business in the Commonwealth that is not a life-sustaining business regardless of whether the business is open to members of the public.” Non-life sustaining businesses may continue operations utilizing virtual or work from home procedures, “so long as social distancing and other mitigation measures are followed in such operations.” In simpler terms, a non-life sustaining business (or school district, in this case) may not avoid the Governor’s mandate and continue to perform on-site operations in a physical location by simply closing their facilities to the public. The Governor’s Order is clear that enforcement actions will be taken against non-life sustaining businesses who are not in compliance with the order as of 12:01a.m. on March 21, 2020.
In defining the term “life-sustaining” operations pursuant to the Order, the Governor’s Office provided a chart of Industries, Sectors, Subsectors, and Industry Groups which are classified as life-sustaining and may continue operations. Although Elementary and Secondary Schools are not classified as life-sustaining businesses, our office has interpreted the Governor’s Order to permit certain essential operational departments of a school district to perform their duties at the school’s physical building or buildings. This guidance is based upon certain Industry Groups, whose duties can be interpreted to involve the operations of school districts, being classified as life-sustaining under the Governor’s Order.
Since the mandated school shut down went into effect last Friday, food service personnel have continued actively working by preparing and distributing meals for students at off-site locations, in order to maintain a continuity of service for those students in need of food. The Governor’s Order does not specifically identify food service personnel as a life-sustaining, or non-life sustaining operation. However, food production industries, transportation and delivery industries, grocery stores, and restaurants are permitted to operate (albeit under certain restrictions) under the current Order. Accordingly, it is the opinion of our office that it is reasonable to interpret the Governor’s Order as classifying food service personnel who are actively engaged in preparing and distributing food to students as life-sustaining. Accordingly, these employees would be permitted to continue their duties during the period covered by the Governor’s Order.
Additionally, under the Governor’s Order, “Facility Support Services” and “Services to Buildings and Dwellings” are classified as “life-sustaining.” Accordingly, it is reasonable to interpret the Order to include custodial and maintenance services as life-sustaining, to the extent those individuals are required to perform duties that are essential to the operation of the school building. For example, a custodian or maintenance employee who is required to perform critical maintenance in a school building should be permitted to perform those duties. It would be reasonable for a school district to determine which operations are absolutely essential to the continued operation and security of a building and ensure that those duties are performed by a limited number of employees. Under the same rationale, it is reasonable to assume that information technology professionals who needed to perform duties related to the school district’s computer infrastructure could perform those duties at the physical school location. If such work could be performed remotely, or if the employee’s duties could be limited to a shorter time period, that would be the preferable course of action, but it is our opinion that an IT professional could work in the physical location.
Under the Order, office administrative staff are not considered life sustaining occupations. These individuals will need to work remotely. Additionally, some school districts intended to bring in members of the teaching staff on the upcoming Monday and Tuesday to prepare student work packets. These duties would be classified under the general “Elementary and Secondary School” classification and teachers would not be permitted to work unless able to do so remotely.
In interpreting the Governor’s Order, it is reasonable to assume that any individual who needed to perform supervisory functions over the essential staff could continue working in the physical school buildings. It is preferable for supervisory employees to work remotely where possible, however where this is not feasible, based upon the nature of the supervisor’s duties, a small group of essential high-level managerial personnel could work in the physical locations, but should do so on an as-needed basis, not on a regular basis. Based upon the above guidance, these individuals should be limited to: the District Superintendent, Director of Facilities, IT Director, and Food Service Director. It should also be noted that the Governor’s Order does not mandate that such personnel be present at the school location. If the school district has prepared contingency plans and supervisors may perform their duties remotely, then the school district should follow this plan. Where such personnel are physically present, they should observe appropriate social distancing practices.
Our office’s interpretation of the Governor’s Order is intended to guide school districts in undertaking a reasonable course of action in staffing their buildings only with personnel who are absolutely essential to the operations of the school district and whose absence would significantly affect the continuity of the school district’s operations and jeopardize the district’s ability to transition the district into active status once the Order is lifted and normal operations resume. Further, this guidance is not intended to replace specific advice, our office can advise school district’s on a case by case basis as to their duties under this Order. Finally, should the Governor’s Office provide any supplemental guidance in interpreting this Order, our office will follow up with additional information. Please contact the team of attorneys at Maiello, Brungo & Maiello, LLP for advice on any school-related matters. Although MBM’s office will be closed to comply with the Governor’s Order, our attorneys will continue to remain available and responsive to our clients’ needs by email and cell phone with the same level of responsiveness during this time of unprecedented national and local emergency.