On the eve of Lancaster County’s planned defiance of its state-mandated COVID-19 shutdown, a group of attorneys offered guidance, warning business owners that they’d be putting themselves at risk by opening before officially allowed.
That was the message shared during a Thursday afternoon webinar by a trio of attorneys from the regional law firm Barley Snyder, which has an office in Lancaster County.
They spoke in the hours before county officials were set to loosen restrictions on coronavirus-related stay-at-home orders and business closures — a move that state Gov. Tom Wolf has prohibited, calling it premature.
For now, Wolf’s order to keep Lancaster County closed is law, said attorney Martin Siegel, chair of Barley Snyder’s COVID-19 Response Service Team.
“That is what is enforceable. That is what has established legal obligations for everyone,” Siegel said, explaining the order has been upheld by the Pennsylvania Supreme Court.
Then, he and his colleagues offered advice, and here are some of the takeaways:
Citations could be filed, licenses revoked
While Lancaster County District Attorney Heather Adams has already announced that her office will not prosecute violations of Wolf’s stay-at-home order, state prosecutors could step in, Siegel said.
Admitting it’s unlikely, Siegel told business owners that state police will still have the ability to file citations, which the state attorney general’s office could prosecute.
More threatening were comments from Wolf suggesting that he would revoke state-issued permits and licenses that businesses need to operate, Siegel said. It’s an enforcement option that Wolf is within his rights to deploy, he said.
“These can very directly affect your business,” Siegel said.
Wrongful termination claims could spike
As businesses look to re-open they will have to be mindful of circumstances that could prevent some employees from returning to work, according to attorney Jill Sebest Welch.
Even if state health guidelines like mask wearing and social distancing are in place, some employees with underlying health issues and coronavirus-related child care issues may be unable to return, she said.
Terminating those employees for refusing to return could lead to winnable wrongful termination lawsuits. That’s especially true in areas that open without approval from the state, she said.
“These employees will be able to apply for unemployment, and that would not be a basis of denial,” Welch said.
Civil lawsuits could be filed
In addition to the potential for citations and wrongful termination claims, businesses that open prematurely or without regard for health-safety guidelines could be open to lawsuits from patrons and employees, said attorney Lindsey Cook.
“Generally a business owes duty to guard against known dangers,” she said.
Though it will be hard to prove, there is a potential that people, who believe they contracted COVID-19 at specific businesses, will file personal injury lawsuits, she said.
That could become a problem, especially for businesses defying Wolf’s orders because insurance companies may refuse to cover legal expenses, the attorneys said. Many insurance policies include language that deny coverage when related to illegal activity, they said.
“Defending businesses should bad things happen is a lot more difficult if people open their business in defiance of the law,” Siegel said.