Seyfarth Synopsis: On Monday, March 23, 2020, Governor Baker announced increased COVID-19 restrictions on Massachusetts businesses and residents. Most notably, effective Tuesday, March 24th at noon, the Order requires businesses and organizations whose workforces are not engaged and working in production and service sectors designated as “COVID-19 Essential Services” to close until April 7, 2020. Additionally, with limited exceptions, such as provision or delivery of COVID-19 Essential Services, the Order prohibits gatherings of more than 10 people.
Temporary Closure of Businesses That Do Not Provide “COVID-19 Essential Services”
The Order requires businesses and other organizations that do not provide “COVID-19 Essential Services” to close their physical workplaces and facilities to both workers and customers by 12:00 noon on Tuesday, March 24, 2020, until 12:00 noon on Tuesday, April 7, 2020. While “non-essential” businesses must close their brick-and-mortar facilities, they are encouraged to remain operative through remote means. Exhibit A of the Order identifies the list of designated businesses and other organizations that provide essential services and workforces related to COVID-19 that shall continue to operate brick and mortar facilities during the effective dates of the Order. COVID-19 Essential Services include the following:
Healthcare / Public Health / Human Services. Employers such as hospitals, laboratories, clinics, medical equipment manufacturers, blood and plasma donation facilities, and health plans, among other related business and organizations.
Law Enforcement / Public Safety / First Responders. This includes contracted vendors who maintain digital systems infrastructure supporting law enforcement and emergency services operations.
Food and Agriculture. Grocery stores, pharmacies, liquor stores, restaurant carry-out and quick-serve food operations, food delivery businesses, food manufacturers, and companies engaged in production of chemicals, medicines, vaccines and other substances used by the food and agriculture industry, among other related businesses and organizations.
Energy. This includes electricity, petroleum, natural and propane gas, and steam industries.
Water and Wastewater. Employers that operate and maintain public and private drinking water and wastewater/drainage infrastructure.
Transportation and Logistics. Employers that provide transportation functions, air transportation employers, and other related transportation businesses and organizations.
Public Works. This includes contracted vendors involved in the construction of critical or strategic infrastructure, among others.
Communications and Information Technology. This includes employers that maintain communications infrastructure, and radio, television, and media services.
Other Community-Based Essential Functions and Government Operations. This includes employers of security personnel, hotel workers, and certain construction workers, among others.
Critical Manufacturing. Employers of workers necessary for the manufacturing of materials and products needed for medical supply chains.
Hazardous Materials. Employers of workers at nuclear facilities, medical and pharmaceutical waste facilities, and other related businesses and organizations.
Financial Services. Employers of workers needed to process and maintain certain systems for processing financial transactions and services.
Chemical. Employers supporting chemical and industrial gas supply chains, among other related employers.
Defense Industrial Base. This includes organizations with personnel who support certain national security or Department of Defense commitments.
The Order directs the Commissioner of Public Health to issue guidance (“DPH Guidance”), subject to the Governor’s approval, to implement the terms of the Order which includes a requirement that grocery stores and other retailers with substantial retail grocery sales establish special limited access hours during which elderly and other vulnerable populations may have exclusive access to make grocery purchases. The Order also provides a mechanism for employers that are not on this list to request designation as an essential business.
Gatherings of More Than 10 People Are Prohibited
The Order also prohibits gatherings of more than 10 people, but this does not include certain gatherings required in furtherance of providing COVID-19 Essential Services. The ban also does not prohibit gatherings of more than 10 people in unenclosed areas such as parks, fields, and parking lots. Recreational activities requiring close physical contact, however, are prohibited even if they involve 10 or fewer people.
Guidance and Enforcement
The Commissioner of Public Health is expected to issue further guidance to implement the Order, which will include a requirement that grocery stores and other grocery retailers establish special limited access hours for elderly and vulnerable individuals. We will provide an update with respect to that guidance when it is released.
The Department of Public Health is responsible for enforcing the Order, if necessary, with the assistance of state or municipal police. Violations may result in criminal penalties or a civil fine of up to $300 per violation.
Considerations for Businesses
Massachusetts businesses and organizations that provide COVID-19 Essential Services are encouraged to follow social distancing protocols, including guidance issued by the Massachusetts Department of Public Health and the CDC. These employers might also consider providing employees with a letter verifying that they work for an employer that provides COVID-19 Essential Services. If the function of your business is NOT listed in the COVID-19 Essential Services enumerated in Exhibit A to the Order, but you believe that it is essential or it is an entity providing essential services or functions, you can submit an online request using the form found here: https://www.mass.gov/forms/essential-service-designation-request to be designated as essential for the purposes of the Order.
 The Order references the March 19, 2020 federal guidance identifying 16 critical infrastructure sectors whose workers provide services and functions that are essential to maintain in order to support a strong response to the COVID-19 pandemic. However, the Order includes additional services and functions that are essential to the public health and welfare of the Commonwealth.