HARRISBURG, Pa. —
With some counties allowing businesses to reopen in defiance of Gov. Tom Wolf’s shutdown order, attorneys warn of the legal challenges those businesses could face.
Businesses that reopen in Red Phase counties may be at higher risk of liability or worker compensation lawsuits if they expose customers or employees to COVID-19 and get them sick.
“Yes, I think there will be lawsuits litigating the issue,” said Devon M. Jacob, a civil rights lawyer based in Mechanicsburg.
Wrongful termination suits are likely if employees of businesses that reopen early feel uncomfortable going to work, and forced to choose between their job or their health.
“If individuals return to work and are exposed are made sick, I think that`s going to be a big question the courts are going to have to decide,” said Chriss Ferro, an attorney in criminal and civil law based in York.
In addition to potential lawsuits, Gov. Tom Wolf threatened in a press conference Monday that businesses that reopen in Red Phase counties could face other penalties. A number of state agencies regulate businesses, from restaurants and salons to car dealerships and funeral homes. Gov. Wolf said businesses that open early could risk their licenses, certificates of occupancy and other required government approvals to operate.
“The state has very strong authority over licensing issues and can take steps to suspend, restrict and penalize licensees,” Ferro said.
Gov. Wolf also gave a stern warning to county governments that refuse to enforce the shutdown order.
“All prosecutors have prosecutorial discretion but again, I`m not going to put up with any politician, anywhere in Pennsylvania, jeopardizing the lives of the citizens of those counties,” Gov. Wolf said.
Some counties, including Lebanon, Franklin, Dauphin and Lancaster Counties, announced plans to shift into the Yellow Phase May 15, in violation of Gov. Wolf’s orders. Others, including Cumberland, Perry and Lancaster Counties, have directed their law enforcement agencies not to enforce the order.
Pennsylvania State Police are still able to issue citations for violating the shutdown and stay-at-home orders, telling FOX43 in a statement:
“Since March 23, the troopers have issued 329 warnings and one citation related to the business closure order. PSP has issued seven citations (four incidents) related to the stay at home order and zero citations related to the worker safety order. From the beginning of the commonwealth’s COVID-19 mitigation efforts, the Pennsylvania State Police has been focused on achieving voluntary compliance through education, and that stance has not changed.
We have found that the overwhelming majority of Pennsylvania businesses -- and Pennsylvanians – are doing the right thing and abiding by Governor Wolf’s orders; however, Pennsylvania is in the midst of a public health emergency and citations are possible for businesses and individuals who disregard the order suspending in-person operations of non-life-sustaining businesses, the stay at home order, or the worker safety order. The decision whether to issue a warning or a citation is made on a case-by-case basis and determined by the unique circumstances of each encounter.”
There isn’t much judicial precedent for cases where a person or business ends up in court for violating an emergency closure order. Both the government and businesses could make an argument of potential “irreparable harm;” opening too soon could lead to sickness and death from the COVID-19 virus, while opening too late could lead to financial ruin.
“I understand where both sides are coming from, but that`s why we have laws, that`s why we have courts to decide very difficult issues when we have competing interests at stake,” Jacob said.
The state would likely prevail in most cases against individuals, businesses and counties, Jacob predicted, since the Pennsylvania Supreme Court in April rejected a challenge to the governor’s shutdown order.