In a decision issued on September 14, 2020, U.S. District Court Judge William S. Stickman IV ruled that certain restrictions ordered by Pennsylvania Governor Tom Wolf to slow the spread of COVID-19 were unconstitutional. Judge Stickman’s decision comes after several other Pennsylvania courts upheld the restrictions as being within Wolf’s authority and courts in other states had upheld similar types of orders.

THE DECISION

The decision impacts three of Wolf’s COVID-19 orders:

• The order prohibiting indoor gatherings of more than 25 people and outdoor gatherings of more than 250 people
• The stay-at-home order
• The order closing all “non-life-sustaining” businesses.

Wolf’s other COVID-19 orders, such as those requiring teleworking in certain situations and addressing mandatory use of masks and worker and building safety, are not affected by this decision and remain in effect.

In his Opinion, Judge Stickman wrote that while Wolf’s orders were a “well-intentioned effort to protect Pennsylvanians from the virus … good intentions toward a laudable end are not alone enough to uphold governmental action against a constitutional challenge.” Judge Stickman then struck down the above provisions of Wolf’s orders as unconstitutional under the First and Fourteenth Amendments.

LIMITED IMPACT

Despite finding three of Wolf’s orders unconstitutional, the court’s decision is unlikely to affect the day-to-day operations of most Pennsylvania businesses. Wolf had already suspended enforcement of the stay-at-home order and the order closing non-life-sustaining businesses as part of his reopening plan, so the Court’s decision merely prevents the reinstatement of those orders.

Wolf had not suspended the gathering restrictions during his reopening plan, but instead amended the order to eliminate the 25-person indoor gathering limit. The outdoor gathering restriction remained in effect, so this restriction has now been lifted by the Court’s decision. It is important to note, however, that the gathering restriction is distinct from the restrictions on “normal business operations.” Those restrictions establish building occupancy limits (e.g., 25% for restaurants and 50% or 75% for retail and other businesses), and they have not been lifted by the decision. Instead, the decision merely lifts the restriction on outdoor gatherings of more than 250 people and prevents the 25-person indoor gathering limit from being reinstated.

Wolf responded to the ruling by stating that he intends to seek a stay of the decision and file an appeal. If Wolf is granted a stay, the orders will remain in effect pending a decision by the Third Circuit Court of Appeals.

WHAT DOES THIS MEAN FOR PENNSYLVANIA EMPLOYERS?

The court’s decision should not have an impact on most Pennsylvania employers, at least not now. Because the stay-at-home order and non-life-sustaining business closure order had already been suspended, most Pennsylvania businesses have been operating without these restrictions since their counties went into the “Green Phase” of reopening. Pennsylvania businesses should note, however, that the business occupancy restrictions have not been lifted, and business owners should continue to follow those restrictions. The decision would become more meaningful if Wolf ever sought to reinstate the stay-at-home and business closure orders.

Outdoor businesses, such as flea markets, drive-in movie theaters and others, should contact an attorney to determine whether this decision will allow them to operate free of the 250-person limitation.

Pennsylvania businesses also should keep an eye on Wolf’s appeal and request to stay the decision. If the stay is granted, Wolf’s orders will remain in effect until the Third Circuit rules on the appeal.