What does the Concurrent Resolution adopted in PA mean – Can all businesses reopen?

Is the pandemic over?

Can I open my business?

Can we gather in groups of more than 250 people?

If I open my business, are there any restrictions?

Many questions are surfacing after hearing that PA lawmakers voted to end the disaster emergency. Here’s what happened (and what didn’t happen).

Late Tuesday night, PA lawmakers voted to end the “COVID-19 disaster emergency” declared by Governor Tom Wolf. This lead to a widespread understanding that all businesses were allowed to re-open. It’s important to review some of the laws of our state so that we can all better understand what is currently going on in our Commonwealth.

How is a State of Emergency Declared?

According to the laws in Pennsylvania, specifically 35 Pa.C.S. § 7301 (c), the Governor has the right to declare a state of disaster emergency by issuing an executive order or proclamation. On March 6, 2020, Governor Tom Wolf declared a disaster emergency by proclamation. On June 3, 2020, Governor Tom Wolf issued a second proclamation extending the state of disaster emergency through September 1, 2020. A proclamation of disaster emergency can only last 90 days unless it is rescinded or amended by the same person declaring the emergency – the Governor.

In other words, the law provides that the state of disaster emergency continues until the Governor issues a proclamation or executive order ending the state of disaster emergency.

What many of us did not anticipate is that as per §7301 (c), the General Assembly (Senate and House of Representatives) may terminate a state of emergency at any time by “concurrent resolution”. A concurrent resolution is a resolution adopted by both the Senate and House of Representatives but is NOT presented to the Governor for his approval and/or signature. Once the General Assembly adopts the resolution, the law provides that the Governor shall issue an executive order or proclamation ending the state of disaster emergency.

Section 7301 (c) does not give the Governor the power to veto the resolution. So why is he saying he is going to veto it? Is it possible there is another conflicting law that he may be referring to? Absolutely.

The General Assembly cites the authority to adopt a concurrent resolution which would end the state of emergency pursuant to 35 Pa.C.S. 7301, which we already discussed in this article. The Governor, on the other hand, cites our Pennsylvania Constitution Article III Section 9 which provides that “every order, resolution or vote, to which the concurrent of both Houses may be necessary, … shall be presented to the Governor and before it shall take effect, be approved by him, or being disapproved by him, shall be repassed by the two-thirds of both Houses…”. So the question becomes which law governs or supersedes.

So What Happens Next?

There are a few ways this may be addressed. First, since we have conflicting laws, this issue may be taken to court. There have been similar cases presented before our Supreme Court, but nothing with the same exact facts as this pandemic is certainly unprecented.

Another possibility is that the Governor could issue a new Proclamation or Executive Order relating to the pandemic. It is clear based on his letter to the General Assembly that he opposes the concurrent resolution and indicates that ending the Disaster Emergency would be devastating.

Yet another possibility is that the General Assembly could allow the Governor to veto the resolution as per the PA Constitution. However, this would result in the General Assembly agreeing with Governor Tom Wolf regarding which law is applicable. If this would happen, then the resolution would come back to the General Assembly for another vote. The only way the resolution would pass then is if it would get approval by vote from two-thirds of both the Senate and House of Representatives. Let’s break down the math for that to occur and compare it to the concurrent resolution passed Tuesday night.

Last night’s vote was 31-19 in the Senate and 121-81 in the House of Representatives. Two-thirds of the Senate is 33, meaning, 2 more Senators would have to vote “yes” to the resolution in order for it to pass. Two-thirds of the House of Representatives is 134, which is a difference of 13 additional votes.

The likely way this will be addressed is through the courts. In fact, a Petition was filed in the Commonwealth Court of Pennsylvania yesterday, June 10, 2020, asking the Court to issue an Order commanding him to issue an executive order or proclamation ending the state of disaster emergency. Governor Wolf has 30 days to respond to this Petition (30 days from the date he is served with the Petition which may not have happened yet).

Do I Still have to Wear a Mask?

It is also important to note that the legislature voted to end the disaster emergency but many health-related and disease control measures currently being implemented are at the discretion of the Department of Health under the authority of Dr. Levine. The Department of Health has issued several orders relative to the operation of a business which have NOT been lifted. What this means is that while your business may be able to open under the termination of the declaration of disaster emergency, it may NOT be able to open according to the Department of Health’s standard. This can lead to licensing issues if a business owner violates an order from the Department of Health among other problems.

To answer the question of whether or not you still have to wear a mask, the requirement to wear a mask is only a recommendation and not a “law” or “requirement” statewide. However, each business has the right to adopt their own policies as to whether or not to require patrons and customers to wear masks inside their place of business. It’s similar to the “no shoes, no shirt, no business” policy many business owners have adopted. Therefore, the short answer is yes, probably, as most businesses are requiring those entering the business to wear masks to protect their employees. It should be noted that masks are not required to be worn by children under the age of 2 and those with a medical condition.

Can I Open my Business?

Since we are still in the yellow phase in Schuylkill County, those businesses that weren’t allowed to open until the County turns green unfortunately still should not open.

Business owners- my advice is that the outcome of this resolution at this time is unfortunately uncertain. There have been a lot of uncertainties and a lot of waiting during this pandemic and unfortunately, we again must wait for this to be resolved. There is no way to determine how long it will take to sort this all out unfortunately. At this time, the only time frame we know is that the Governor has 30 days to respond to the Petition. Schuylkill County will likely be in the green by then.

Contact Williamson Friedberg & Jones

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