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By: Ashley Hobson
On Monday, September 14th a federal judge in the Western District of Pennsylvania struck down the Governor’s restrictions on the size limitation of persons at gatherings and the mandatory closure of “non-life sustaining” businesses. The restrictions, which were similar to those across many states, have since been lifted as all counties entered the “Green” phase of re-opening on July 3rd. Although District Judge William Stickman IV labeled the Governor’s restrictions as “well intentioned,” he also opined that “good intentions towards a laudable end are not alone enough to hold governmental action against a constitutional challenge.”
Like most states across the country, Pennsylvania initiated strict protocols in the hopes of containing the novel coronavirus outbreak. Due to the virus’ varying impacts across the state, counties were placed under Stay-at-Home Orders on different dates, and the statewide Stay-at-Home Order was implemented on April 1st.
The Governor implemented a three-phase re-opening process: Red, Yellow, and Green. In the Red Phase, only life-sustaining business were permitted to remain open. Further, large gatherings were completely forbidden, and restaurants were limited to carry-out and delivery. In the Yellow Phase, gatherings were limited to no more than 25 persons, with many businesses remaining closed. As of July 3, 2020, every county moved to the Green Phase. Although the Green Phase reopened most business establishments, there are still capacity limitations for both indoor and outdoor activities.
On May 7th, the Plaintiffs filed their Complaint, arguing the Governor’s “numeric limitation on the size of gatherings” violated the First Amendment, while the Stay-at-Home Orders and the mandatory closure of “non-life-sustaining” business violated the Due Process and Equal Protection Clauses of the Fourteenth Amendment.
In addressing the First Amendment violations, Judge Stickman held the capacity restrictions were not only far too broad and not scientifically linked to achieve the State’s goal of reducing the spread of Covid-19, but that the capacity limitation does not “address the specific experiences of the virus across the Commonwealth.”
The Court also agreed that the Stay-at-Home Orders and business shutdowns were also unconstitutional. Similar to the capacity restrictions, Orders were far too broad, open-ended and the State has not proved the “burden to liberty is no more than reasonably necessary to achieve an important government end.”
How Does this All Relate to Employer?
For employers, the Court’s reasoning on the unconstitutionality of mandatory business closures is enlightening. The Court agreed that certain components of the state’s mandatory business shutdown orders violated the Fourteenth Amendment’s Due Process and Equal Protection Clauses. The closing of “non-life-sustaining businesses” limited a person’s “pursuit of his or her chosen profession free from governmental interference.” Judge Stickmen held, that is uncontested that the Fourteenth Amendment’s Due Process Clause recognizes an interest to pursue an occupation, but the true question is not about the right to work, but how much the State can infringe upon that right. In Pennsylvania, the Governor’s initial Order mandating the closures still has no definitive end date, which would permit the State to reclose businesses if it deems it necessary. Even though the State argued that the mandatory closures were temporary and many businesses has since reopened, the damage has already done.
Even if the restrictions were temporary, the Court found the State’s reasoning for labeling certain businesses as “non-life-sustaining” versus “life-sustaining” was done without creation of a set policy or even creating a definition of the term that could be agreed upon by all members of the State’s task force that initiated the closures. Rather than creating a uniform definition, the task force used “their commonsense judgement.” Although business owners were permitted to file waivers if their business was mistakenly classified as “non-life-sustaining,” the State closed the waiver process on April 2, 2020, and left many businesses without an option to appeal the designation. The arbitrary nature of the state’s designation left many business owners confused as to their status as “life-sustaining” or not.
The business closure provisions also violated the Fourteenth Amendment’s Due Process Clause in two ways. First, due to the States grouping of certain counties into regions for the purposes of implementing the phased re-opening plan, similarly situation businesses were not treated equally due to their location in a different region. Secondly, similarly situated businesses in the same region, were also treated unequally. The second argument is exemplified by the State’s permission of retailers such as Lowes and Home Depot to remain open during the pandemic. As many are aware, Lowes and Home Depot sell furniture, appliances, and various other products. Although they were permitted to remain open, smaller retailers that sold similar products were required to close. The only difference between Lowes and a smaller retailer that offers the same products is the size of the retailer, and that alone is insufficient to pass constitutional muster.
Although the Court agreed that States are permitted to implement certain regulations based on county and/or population density, the State cannot arbitrarily group businesses into categories of “non-life-sustaining” vs. “life-sustaining” without a measurable definition. Lastly, a State’s decision to close businesses must rationally relate to the stated purpose. Thus, there should not be a distinction between larger and smaller retailers who offer the same merchandise. The Court found that, although the State had good intentions, its implementation was far too arbitrary and not rationally related to achieve it goals.
Judge Stickman’s ruling is hot off the press, and, although the State plans to appeal the District Court’s decision, it is unclear if the State will be successful and what the ruling may mean for other Pennsylvania businesses that remain closed. As these are very real issues to navigate, please contact one of our Labor and Employment team members to discuss the next steps in more detail.
If you have questions or would like more information, please contact Ashley Hobson at [email protected].