UPDATE: On March 31, Governor Charlie Baker issued an extension of the Emergency Order to May 4, 2020. It was originally written to end on April 7, 2020. All other stipulations in the order otherwise are seen unchanged.
On Monday, March 23, Massachusetts Governor Charlie Baker issued a State of Emergency Order for Massachusetts (Order). The Order clarifies what businesses are deemed essential and non-essential (discussed in Exhibit A, described below). It also prohibits gatherings of over 10 people (Discussed in Assemblage Guidance, described below). The Order also urges all individuals to maintain social distancing and hygienic practices.
The first Emergency Order was issued due to the public health threat of COVID-19, and became effective on March 10, 2020. The emergency order granted powers to the governor to issue recommendations, directives, and orders as circumstances may require.
Exhibit A, issued March 23, designates “businesses and other organizations that provide essential services and workforces related to COVID-19 that shall continue to operate brick and mortar facilities.” The list is based on federal guidance and amended to reflect the needs of Massachusetts’ “unique” economy.
All “Non-Essential Businesses” within the State shall be closed, effective March 24, 2020 at noon, until after May 4, 2020. However, businesses and organizations not on the list of essential services are encouraged to continue operations through remote means that do not require workers, customers, or the public to enter or appear at the brick-and-mortar premises closed by the order.
“Non-Essential Businesses” include, but are not limited to:
- Hospitality and recreation facilities
- Concert halls, theaters, and other performing arts venues
- Sporting event facilities and venues
- Shopping malls
- Retail stores not included within the definition of Essential Businesses
The Exhibit defines “Essential Businesses” as businesses from the below categories, that employ or utilize specific types of employees detailed in the Exhibit. If a business falls under one of the following categories, consult the Exhibit text for a detailed description of the types of employees that define an “Essential Business.”
- Healthcare/Public Health/Human Services
- Law Enforcement, Public Safety, First Responders
- Food and Agriculture
– Electricity Industry
– Petroleum Industry
– Natural Gas and Propane Industries
– Steam workers
- Water and Wastewater
- Transportation and Logistics
- Public Works
- Communications and Information Technology
- Other Community-Based Government Operations and Essential Functions
- Critical Manufacturing
- Hazardous Materials
- Financial Services
- Defense Industrial Base
All State “Essential Businesses” must follow the COVID-19 guidelines for public safety recommended by the CDC and Department of Public Health, to include:
- Excluding employees who (a) have been diagnosed with COVID-19, (b) are reasonably suspected to have COVID-19, or (c) have symptoms of acute respiratory illness, such as fever, cough, or shortness of breath, shall stay home and not come to work until they are until they are free of fever (100.4 °F [38.0 °C] or greater using an oral thermometer), signs of a fever, and any other symptoms of acute respiratory illness for at least 24 hours, without the use of fever-reducing or other symptom-altering medicines; and
- Excluding employees who reside or intimately interact with persons who (a) have been diagnosed with COVID-19, (b) are reasonably suspected to have COVID-19, or (c) have symptoms of acute respiratory illness, such as fever, cough, or shortness of breath.
Effective March 24 at noon., the State prohibits “gatherings of over 10 people.” Additionally, all individuals using “shared or outdoor space” must “maintain social distancing of at least six feet from any other person[.]” The Order rescinded and revoked the Governor’s earlier issued March 15, 2020 Order Prohibiting Gatherings of More than 25 People. The Order directs the Department of Public Health to issue this guidance to implement the terms of the Order and further provides that any violation of the guidance shall be treated as a violation of the Order.
Gatherings subject to the Order include, but are not limited to: community, civic, public, leisure, or faith-based events, sporting events, concerts, conferences, conventions, fundraisers, parades, fairs, festivals, weddings, funerals, and any similar event or activity that brings together 10 or more persons in any confined indoor or outdoor space.
The Order does not apply to the following gatherings of 10 or more people:
- in an unenclosed, outdoor space such as a park, athletic field, or parking lot (so long as social distancing protocols are followed)
- normal operations at airports, bus and train stations, ferries, polling locations, grocery stores, farmers’ markets, food pantries, banks and pharmacies.
- operations or activities of any business or organization in its provision of “COVID-19 Essential Services” as those are defined in the Order and Exhibit A to the Order.
- healthcare facilities.
- dental or orthodontic offices performing emergency procedures; provided, that to the extent practicable employees and patients must implement social distancing protocols.
- RESTAURANTS AND BARS:
– or establishments that offers food or beverages shall not permit on-premises consumption of food or beverages; however, such establishments are encouraged to continue to offer food for take-out and by delivery, provided, that they follow social distancing protocols that require individuals to stay at least six feet apart. Food service establishments may have more than 10 employees on premises to provide these take-out and delivery services, provided, that they follow social distancing protocols. This guidance applies to all food service establishments, including, but not limited to, food services establishments in hospitals, hotels, office buildings, and higher education institutions.
- shelters (e.g., homeless shelters and domestic violence shelters) or organizations providing services and supports to a shelter.
- temporary or permanent locations used for isolation and/or quarantine.
- operation of child care programs in the Commonwealth, which are subject to the March 18, 2020 Order Temporarily Closing All Child Care Programs and Authorizing the Temporary Creation and Operation of Emergency Child Care Programs, as may be subsequently amended.
- residential schools for special needs students. The Order also does not apply to public and private elementary and secondary (K-12) schools in the Commonwealth, which are subject to the March 15, 2020 Order Temporarily Closing All Public and Private Elementary and Secondary Schools, as may be subsequently amended, which suspended all normal in-person instruction and other educational operations.
The Order applies to all athletic events. Athletic activities that bring participants into close, physical contact, whether they are conducted indoors or outdoors, are prohibited even when involving 10 or fewer people.
Regardless of whether an event or gathering falls within the scope of the Order, all persons are urged to maintain social distancing (six feet away from other people) whenever possible and to continue to wash hands, utilize hand sanitizer and practice proper respiratory etiquette.
Regardless of whether an event or gathering falls within the scope of the Order, all higher risk individuals should avoid close contact with other individuals. Higher risk individuals include older adults, anyone with underlying health conditions, such as heart or lung disease or diabetes, anyone with weakened immune systems, and anyone who is pregnant.
Violations of this order shall be punished in the following manner: (a) the first offense shall result in a warning; (b) the second offense may result in a civil citation and a fine of up to $300; and (c) further offenses which are repeated and willful may be subject to criminal penalties including a fine up to $500 or term of imprisonment or both.
If the function of your business is not listed above, but you believe that it is essential or it is an entity providing essential services or functions, you can request designation as an essential business. Requests by businesses to be designated an essential function should only be made if they are NOT covered by the guidance. The Governor’s office has provided a link to request designation as an essential business. It can be found here: https://www.mass.gov/forms/essential-service-designation-request.
Navigating compliance with this Order, including determinations as whether your business qualifies, whether an exemption should be requested, and what instructions should be given to employees, requires careful thought. Our COVID-19 Task Force stand ready to provide consultation and assistance. Please contact Daniel Kelly, Cara Wulf, and Ethan Brown, and Guillermo Artiles.