April 14, 2020
In response to the outbreak of COVID-19 in the United States, federal, state and local governments have taken actions to limit the spread of the disease by issuing orders and guidance requiring closure of wide-ranging categories of business and industry.
But are maintenance and security staff allowed to continue providing services for those closed businesses? What are the limitations and requirements for permitted maintenance and safety-related services for closed businesses and those allowed to remain open? Overall, these orders do allow critical and safety-related property maintenance and security services, but safeguards are required to protect employees and the public from COVID-19 exposure while performing such services. Therefore, property owners and managers should remain cognizant of their property maintenance and safety responsibilities, while also adhering to guidelines to prevent spread of COVID-19 to employees and others.
This article examines some of the orders and guidelines affecting businesses in Pennsylvania, explaining what services may remain operational and the scope of limitations.
Guidelines and Orders Identifying Essential Services and Businesses
The U.S. Department of Homeland Security Cybersecurity and Infrastructure Security Agency (CISA) has issued guidance identifying industries or activities deemed critical and/or essential to maintaining infrastructure during the COVID-19 crisis. As of March 28, 2020, the list of critical services includes maintenance, servicing and repair of critical commercial building infrastructure, as well as critical property management services supporting residential housing, such as emergency maintenance and repair services. However, these guidelines state that they are advisory only and should not be considered a federal directive or standard. Businesses are directed to comply with orders and guidance issued by state and local governments.
On March 20, 2020, Pennsylvania Governor Tom Wolf issued an order requiring closure of non-life sustaining businesses. That order will remain in effect until further notice. The list of closed businesses encompasses closure of many industries, including all construction trades, as well as real estate sales and leasing. However, although “construction” and “real estate” businesses are ordered to close, facilities support services, security services, commercial equipment maintenance, and services to support buildings and dwellings are permitted to remain open, as are building material suppliers.
The order does not define many of these terms, and guidance from Governor Wolf’s office has stated that local and county governments should use their best judgment in implementing the order. Nevertheless, the list of life-sustaining businesses and guidance from the Commonwealth do appear to permit security, property management and building maintenance trades to continue operations for the purposes of maintaining safety, preventing property deterioration, and preserving essential building functions. Local orders and guidance have been issued as well, providing more detailed guidance.
The City of Philadelphia, for example, has issued an order barring operation of any non-essential places of business and has defined essential businesses as being those identified as life sustaining by Governor Wolf’s order. However, Philadelphia’s order further states that household repairs and maintenance necessary for maintaining safety, sanitation and essential operation of residences are explicitly deemed essential, as are “emergency repairs” for both residential and non-residential building construction.
Additional essential services permitted to remain open in Philadelphia include pest extermination services and cleaning and maintenance of sidewalks and streets. (Please note that many counties and municipal governments have not issued official orders or guidance implementing Pennsylvania’s statewide business closure order. For the most accurate guidance on the implementation of Pennsylvania’s business closure order in a given county or municipality, please visit the websites of those local governments).
Even if a business has been ordered to close, maintenance and security services supporting that business and/or its properties are permitted to continue to ensure safety or prevent deterioration of properties. For example, the order requiring closure of non-essential businesses in Philadelphia states that businesses required to suspend physical operations may continue to operate with essential on-site personnel to maintain critical functions, such as security, janitorial, maintenance, and trash disposal, among others. Similarly, guidance from Governor Wolf’s office states that maintenance and security may continue for closed businesses to the extent required to ensure safety and prevent deterioration of property conditions. This is consistent with the statewide business closure order allowing services supporting dwellings and buildings, as well as security services, to continue.
Businesses are also permitted to maintain essential on-site personnel to ensure compliance with federal, state and local regulatory requirements. Therefore, despite closure of a business, property owners may continue to maintain their properties to ensure safety and compliance with local regulations, including services needed to comply with property maintenance and building codes, and other safety-related requirements.
Limitations and Requirements for Ongoing Services and Businesses
Although critical property management and security services continue to be permitted under Governor Wolf’s Order, both state orders and federal guidance have set forth rules and guidelines designed to prevent further spread of COVID-19. Essential businesses continuing operations must enact policies to ensure social distancing and follow COVID-19 mitigation guidance provided by the U.S. Center for Disease Control (CDC), the Pennsylvania Department of Health, and local departments of public health. These policies include, but are not limited to, maintaining at least six (6) feet of space between individuals; staggering work schedules where appropriate; frequently washing hands with soap and running water for at least twenty (20) seconds; frequently cleaning touched surfaces; maintaining breathing etiquette; and ensuring hand and personal cleaning supplies are readily available.
With respect to residential maintenance services, Philadelphia’s order regarding essential businesses states: “Businesses permitted to perform emergency household maintenance and repair services under this Order must: require the customer to clean and sanitize the work area 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.”
In addition, as of April 6, 2020, pursuant to the order of Pennsylvania’s Secretary of Health, life-sustaining businesses in buildings greater than 50,000 square feet that are permitted to continue in-person operations must adhere to the following additional cleaning and safety protocols in areas where operations are conducted:
- Clean and disinfect high-touch areas routinely in accordance with CDC guidelines, in spaces that are accessible to customers, tenants or other individuals.
- Maintain pre-existing cleaning protocols established in the facility for all other areas of the building.
- Ensure that the facility has a sufficient number of employees to perform the above protocols effectively and in a manner that ensures the safety of occupants and employees.
- Ensure that the facility has a sufficient number of security employees to control access, maintain order, and enforce social distancing of at least 6 feet, provided the security employees are otherwise responsible for such enforcement.
Pursuant to CISA guidance, if a worker performing critical maintenance or security work is exposed to someone who is confirmed or expected to be infected with COVID-19, managers should implement the following protocol:
- Daily Pre-Screening: measuring the exposed worker’s temperature and assessing symptoms prior to them starting work, ideally before the individual enters the facility.
- Regular Monitoring: workers without a temperature or symptoms, should self-monitor, under the supervision of their employer’s occupational health program, if available.
- Wearing Masks: exposed workers should wear face masks at all times while in the workplace for 14 days after last exposure. Facemasks can be issued or workers can supply cloth face coverings complying with CDC guidelines in the event of shortages.
- Social Distancing: exposed workers should maintain 6 feet and practice social distancing as work duties permit in the workplace.
- Disinfecting and Cleaning: clean and disinfect all areas such as offices, bathrooms, common areas, and shared electronic equipment routinely.
Finally, per CDC guidance, if a critical maintenance or security worker becomes sick during the day, they should be sent home immediately. Surfaces in their workspace should be cleaned and disinfected. Information on persons who had contact with the ill employee during the time the employee had symptoms and 2 days prior to symptoms should be compiled. Others at the facility with close contact within 6 feet of the employee during this time would be considered exposed.
Additional important guidance for employers in reducing exposure and limiting COVID-19 infection can be found at the following CDC website.
Further information about these orders and the scope of limitations on Pennsylvania businesses can be found through the following links:
- Pennsylvania COVID-19 Business Closure Guidance: https://www.pa.gov/guides/responding-to-covid-19/
- Governor Wolf March 20, 2020 Business Closure Order: https://www.governor.pa.gov/wp-content/uploads/2020/03/20200319-TWW-COVID-19-business-closure-order.pdf
- Governor Wolf List of Life-Sustaining Businesses (updated periodically): https://www.scribd.com/document/452553026/UPDATED-4-00pm-April-1-2020-Industry-Operation-Guidance
- PA Business Closure Order Enforcement Guidance: https://www.psp.pa.gov/Documents/Public%20Documents/Letter%20LEO%20Community.pdf
- PA Dept. of Health Secretary March 23, 2020 Stay at Home Order: https://www.governor.pa.gov/wp-content/uploads/2020/03/03.23.20-SOH-Stay-at-Home-Order.pdf
- Governor Wolf April 1, 2020 Stay at Home Order: https://www.governor.pa.gov/wp-content/uploads/2020/04/20200401-GOV-Statewide-Stay-at-Home-Order.pdf
- PA Secretary of Health April 5, 2020 Building Safety Measures Order: https://www.governor.pa.gov/wp-content/uploads/2020/04/20200405-SOH-Building-Safety-Measures.pdf
- OSHA Guidance on Preparing Workplaces for COVID-19: https://www.osha.gov/Publications/OSHA3990.pdf
- Federal Department of Homeland Security (CISA) Memorandum Identifying Essential Critical Infrastructure Workers During the COVID-19 Response: https://bit.ly/3b8wxNT
- CDC Community Mitigation Guidelines: https://www.cdc.gov/coronavirus/2019-ncov/community/index.html
- CDC: Interim Guidance for Businesses and Employers to Plan and Respond to Coronavirus Disease 2019 (COVID-19): https://www.cdc.gov/coronavirus/2019-ncov/community/guidance-business-response.html
- Philadelphia March 22, 2020 Business Closure and Stay at Home Order https://www.phila.gov/media/20200322130746/Order-2-Business-And-Congregation-Prohibition-Stay-At-Home.pdf
- Philadelphia COVID-19 Guidance: https://www.phila.gov/programs/coronavirus-disease-2019-covid-19/multi-language-resources/covid-19-coronavirus-resources-in-english/#guidance-for-businesses-schools-and-organizations
Disclaimer: This post does not offer specific legal advice, nor does it create an attorney-client relationship. You should not reach any legal conclusions based on the information contained in this post without first seeking the advice of counsel.
About the Author:
J. Colin Schwartz is an Associate in the Firm's Casualty Litigation Department. His practice focuses on defending personal injury claims, primarily in the areas of premises liability, automotive negligence, and products liability. Learn More.