In response to the COVID-19 pandemic, Massachusetts Governor Charlie Baker issued a Stay-at-Home Order on Monday, March 23. The Order takes effect Tuesday, March 24, 2020, at 12:00 noon Eastern Time, and lasts until April 7 at 12:00 noon Eastern Time unless further extended. The order requires businesses not included on a list of “Essential Services” to close brick-and-mortar facilities; such businesses are encouraged to continue their operations through remote means.
Below is a summary of the provisions of the Governor’s Order, its accompanying Exhibit A (the COVID-19 Essential Services List), and related Guidance from the Department of Public Health. Guidance and orders are expected to evolve as information develops and other states and jurisdictions issue their own restrictions. WilmerHale is monitoring these developments closely and we are ready to assist you with any questions specific to your organization.
Summary of March 23 Stay-at-Home Order and Related Guidance
- The March 23 Stay-at-Home Order is issued pursuant to the emergency powers of the Governor and Commissioner of Public Health under Mass. G.L. c. 17, s. 2A and Chapter 639 of the Acts of 1950. Previously, the Governor had issued several orders that led many businesses to shift to remote operations. Those orders include a March 10 declaration of a state of emergency, a March 15 order prohibiting gatherings over 25 people and on-premises consumption of food and drink, a March 15 order closing elementary and secondary schools, and a March 18 order closing child care programs.
- The Order identifies specific “production and service sectors” as “COVID-19 Essential Services” that “are urged to continue operations during the state of emergency, but to do so with allowance for social distancing protocols consistent with guidance provided by the Department of Public Health.”
The sectors identified as providing “COVID-19 Essential Services” are listed on the Order’s COVID-19 Essential Services List (Exhibit A to the Order). Businesses that are not listed on the COVID-19 Essential Services List but believe they should be may “request designation as an essential business.” The COVID-19 Essential Services List contains the following sectors, with several subcategories enumerated under each sector:
- Healthcare/Public Health/Human Services
- Law Enforcement, Public Safety, First Responders
- Food and Agriculture
- Energy (including Electricity Industry, Petroleum Workers, Natural and Propane Gas Workers, Steam Workers)
- Water and Wastewater
- Transportation and Logistics
- Public Works
- Communications and Information Technology
- Other Community-Based Essential Functions and Government Operations
- Critical Manufacturing
- Hazardous Materials
- Financial Services
- Defense Industrial Base
The COVID-19 Essential Services List enumerates several specific categories of work under Healthcare/Public Health/Human Services, including “[h]ospital and laboratory personnel” and “[m]anufacturers, technicians, logistics and warehouse operators, and distributors of or necessary to the supply chain of medical equipment, personal protective equipment (PPE), medical gases, [and] pharmaceuticals.” While some categories explicitly reference COVID-19 (e.g., “Workers conducting research critical to COVID-19 response”), the list is generally not limited to work relating to COVID-19.
The COVID-19 Essential Services List also enumerates several categories of Financial Services work, including “[w]orkers who are needed to process and maintain systems for processing financial transactions and services” and “[w]orkers who support financial operations, such as those staffing data and security operations centers.”
- The order directs that all businesses and other organizations not providing “COVID-19 Essential Services” shall close their physical workplaces and facilities to workers, customers, and the public during the Order’s effective period. Such businesses are encouraged to continue operating through remote means. Places of worship need not close, but must comply with the Order’s limitations on gatherings. Restaurants, bars, and other establishments that sell food and beverage to the public are encouraged to continue to offer food for take-out and by delivery if they follow the social distancing protocols set forth in Department of Public Health guidance.
- Gatherings of more than 10 people are prohibited throughout Massachusetts, except to operate a business or organization providing “COVID-19 Essential Services,” or unless taking place in an unenclosed outdoor space, like a park, athletic field, or parking lot. However, athletic and recreational activities that bring people into close physical contact are prohibited regardless of location and even where fewer than 10 people are involved.
- There are specific exceptions for the state and municipal legislative bodies, the state judiciary, and residential schools for special needs students. The Order also does not apply to public schools and child care programs, which are subject to separate orders issued March 15 and March 18, respectively.
- The Department of Public Health has issued additional guidance, which reinforces that “[t]he Order does not apply to the 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.” The Department also states that “[r]egardless 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.”
- The Department of Public Health may enforce the Order through criminal penalties under St. 1950, c. 639, s. 8, or civil fines of up to $300 per violation pursuant to G.L. c. 40, s. 21D. The Department’s guidance states that first offenses shall result in a warning, second offenses may result in a civil fine up to $300, and further offenses that are “repeated and willful” may be subject to criminal penalties including a fine up to $500, imprisonment, or both.
- The order expressly supersedes the March 15 Order Prohibiting Gatherings of More than 25 People and On-Premises Consumption of Food and Drink. Previous orders regarding child care and elementary and secondary schools remain in force (each of those orders provides that it is in effect until April 6). The Order expressly supersedes any inconsistent local order in Massachusetts, including particularly any municipal order that would interfere with continued operation of COVID-19 Essential Services.