As part of his plan for re-opening Pennsylvania following the worst part of the coronavirus pandemic, Governor Wolf has announced that a number of counties in Western and Central Pennsylvania will be upgraded from “Red” status to “Yellow” status. As of May 8, 2020, the following counties have been upgraded to “Yellow” status: Bradford, Cameron, Centre, Clarion, Clearfield, Clinton, Crawford, Elk, Erie, Forest, Jefferson, Lawrence, Lycoming, McKean, Mercer, Montour, Northumberland, Potter, Snyder, Sullivan, Tioga, Union, Venango, and Warren. As of 12:01a.m. on Friday, May 15, 2020, the following counties will be upgraded to “Yellow” status: Allegheny, Armstrong, Bedford, Blair, Butler, Cambria, Fayette, Fulton, Greene, Indiana, Somerset, Washington, and Westmoreland. It has not yet been announced when Beaver County will be upgraded from “Red” status. It should also be noted that an official order, signed by the Governor on May 7, 2020, has only been issued for the Counties of Bradford, Cameron, etc. It is anticipated that an Order for the Counties scheduled to transition to “Yellow” status on May 15 will be identical to the May 7, 2020 Order, but such an Order has not yet officially been signed for those areas. This change in status will affect governmental entities in two major ways, namely: how governmental entities may now conduct meetings and what type of in-person operations may resume.
Pursuant to the Governor’s May 7 Order shifting the Counties of Bradford, Cameron, etc. to “Yellow” status, the “stay-at-home” order issued on April 1, 2020 has been partially lifted. Individuals are no longer prohibited from travelling for non-essential reasons, however gatherings of more than 25 individuals are still prohibited under “Yellow” status. Such a restriction would permit the governing body of a School District or Municipality to physically meet at the entity’s usual meeting location, if it so chose, as the entity still has the option to meet remotely since the Governor’s disaster declaration has not yet been fully rescinded. However, the ability of the public to attend the meeting would be hampered due to the aforementioned capacity restriction. If a governmental entity chooses to hold an in-person meeting while under “Yellow” status, in order to ensure full compliance with the Pennsylvania Sunshine Act, it is strongly recommended that the governmental entity provide some method by which members of the public who are prohibited from attending the meeting due to the capacity restriction can listen to or view the proceedings. Additionally, if a governmental entity chooses to allow a limited amount of members of the public into the physical meeting location, it is strongly recommended that the governmental entity devise a legitimate, non-discriminatory method of choosing which individuals are permitted entry. Examples of such methods include a lottery system or a first-come, first serve sign up system. The governmental entity must still publish its agenda prior to the meeting and accept public comment in real time or via written communication prior to the meeting. Our public sector attorneys can guide your school district or municipality through every step of this process.
The Governor’s May 7 Order also suspends the Governor’s prior order closing non-life sustaining businesses, with a few exceptions. First, any employees whose duties can be performed entirely by remote methods must continue to work remotely, where feasible. Those operations which have been unable to function remotely, due to the fact that the type of operation is not conducive to remote work, may resume in-person operations subject to all applicable health and safety guidelines. Particular attention should be paid to the Pennsylvania Department of Health’s building safety and business safety measures issued April 5 and April 15, as well as all future state and federal health and safety guidance. Certain types of businesses must remain closed. However, unless a governmental entity maintains an indoor recreational facility, this restriction would most likely be inapplicable to school districts and municipalities. In practical terms, certain school district employment classifications who have been unable to perform remote work, such as building custodians, may resume pre-pandemic routines. For municipalities, public works may resume their full activities. Additionally, it is reasonable to interpret the Governor’s Order as permitting governmental employees whose positions, such as administrative support who could not perform their duties remotely, to return to in-person work.
It is important to note that Governor Wolf has indicated that he will not hesitate to re-impose restrictions on certain areas if coronavirus cases spike, so precautions must be taken to prevent the spread of disease. Maiello Brungo & Maiello’s Public Sector attorneys can guide your governmental entity during the Governor’s re-opening plan and advise you on your rights and obligations.