If your head hurts, it might be because you are one of the many who have been thrown off the Life-Sustaining Business Roller Coaster, which has had more ups, downs, loops, and spin-arounds than any coaster at Hershey Park.
At 4:00 P.M. yesterday, Governor Wolf released an updated FAQ for Life-Sustaining Business (“Updated FAQ”). Perhaps the most glaring change is that “[a]ll exemption requests MUST be submitted no later than 5:00 P.M. on Friday, April 3, 2020.” (Emphasis added.) We have heard the more than 32,000 waiver applications have understandably overwhelmed the Department of Community and Economic Development (“DCED”), which is charged with reviewing waiver applications.
The Updated FAQ has been revised significantly since a FAQ was last issued on March 27, 2020. Notably, the Governor is no longer relying on updated advisory memoranda from the Department of Homeland Security’s Cybersecurity and Infrastructure Security Agency (“CISA”). This is a significant change.
We noted in a blog post on March 30, 2020 that the Governor and DCED had been relying, in part, on CISA guidance. In fact, the Commonwealth’s website providing information on the Governor’s Order still states: “Business guidance has been updated after conversations with businesses, stakeholders, and individuals and has been aligned with the Cybersecurity and Infrastructure Security Agency advisory released.” Given the Governor’s recent history with CISA, we were hopeful he, like many other governors and states, would continue to look to CISA for guidance. Therefore, we were pleased for the construction industry (and other industries) when CISA issued an updated memorandum on March 28, 2020 (“Memo”) that added home builders to CISA’s list.
However, the Governor and DCED have now reversed course and the Updated FAQ specifically distances their analysis from the CISA Memo and CISA guidance. Specifically, the Updated FAQ states:
In making exemption determinations, the Department of Community and Economic Development (DCED) is maintaining consistency with an advisory issued by the Department of Homeland Security’s Cybersecurity and Infrastructure Security Agency (“CISA Advisory”) entitled “Identifying Critical Infrastructure During COVID-19.
In analyzing requests for exemptions, DCED is utilizing CISA Advisory Version 1.1, originally issued on March 19, 2020, as amended on March 23, 2020. Version 1.1 of the CISA Advisory is available here. Subsequent changes to the CISA guidance have not been adopted by the commonwealth and will not be applied when analyzing requests for exemptions.
Making matters worse is that the new deadline of 5:00 P.M. tomorrow (Friday, April 3, 2020) for all waiver requests. While we all can appreciate the pressure DCED is under, such a deadline limits the ability of the Governor, DCED and Pennsylvania businesses to adapt to new public health, safety and welfare information that seemingly changes day-to-day, if not hour-to-hour.
EDIT/UPDATE: Relief for private construction, however, appears to be in the works again. Speaker of the House Mike Turzai (R-Allegheny): “House Bill 2400, with nearly 100 co-sponsors, will be assigned to the House State Government Committee with an expected committee vote next week. The bill would allow all public and private construction activities to be undertaken that adhere to mitigation measures set forth by the Centers for Disease Control and Prevention (CDC) to protect workers and mitigate the spread of the COVID-19 virus.” Per the Senator, “Pennsylvania is the only state to shut down all active public and private construction sites, while other states have issued shelter-in-place orders, they have all included exemptions for construction personnel and construction activities.”
If you are considering submitting a waiver application, be sure to submit it by the deadline. In addition, do not hesitate to contact the McNees Strategic Solutions Group (MSSG), the McNees Construction Law Group, or the McNees Real Estate Group for guidance on waivers and related operational matters affected by the Governor’s Order.