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Massachusetts Governor Issues Executive Order Closing Non-Essential Businesses

On March 23, 2020, Massachusetts Governor Charlie Baker signed a wide-ranging Executive Order (the "Order") related to the outbreak of the 2019 novel Coronavirus ("COVID-19"). Among other things, the Order forces the temporary shuttering of all non-essential businesses while allowing critically important businesses to remain open.

The Order requires all businesses within the Commonwealth that do not provide "COVID-19 Essential Services" to "close their physical workplaces and facilities to workers, customers, and the public" from noon on Tuesday March 24, 2020, until at least noon on Tuesday April 7, 2020. Though such businesses must generally close their brick and mortar facilities, the Order encourages them to continue operations remotely.

Attached to the Order is Exhibit A, a nine-page listing of categories of businesses and organizations deemed "essential," as well as critical workforces within each category, that are permitted to continue their physical operations, while following social distancing protocols consistent with guidance from the Department of Public Health. The list includes specific categories of workers within fourteen essential industries: healthcare and human services; law enforcement and public safety; food and agriculture; energy; water and wastewater; transportation and logistics; public works; information technology; other essential community-based functions and government operations; critical manufacturing; hazardous materials; financial services; chemical; and defense industrial base.

A business owner whose organization performs essential services that do not appear on the list may request designation as an essential business through an online Essential Services Designation Request Form.

It should be noted that certain job functions that may not be considered "essential" under other circumstances may be designated COVID-19 Essential Services if performed in support of other essential services. For example, janitorial and cleaning functions are considered essential when required for the continuity of essential IT services, and under certain circumstances, professional services (such as legal and accounting services) are considered essential "to assist in compliance with legally mandated activities and critical sector services."

The Order specifically exempts public and private K-12 schools and child care programs, which remain covered by Governor Baker's March 15 and March 18 Executive Orders, respectively. (Note that the March 15 Order prohibited "normal in-person instruction" through April 6, but did not address the issue of which employees are permitted to work on-site.) Somewhat paradoxically, the list of essential workforces provides guidance with respect to which school employees can perform work on campus. Specifically, the Order states that educators and support staff in K-12 and other educational institutions "facilitating distance learning, provision of school meals, or performing other essential student support functions, if operating under rules for social distancing," are permitted to report to work. The Order also designates as "essential" security personnel responsible for maintaining building access control and physical security.

In addition to these provisions, the Order temporarily prohibits gatherings of ten (10) or more people, restricts restaurants and bars to take-out and delivery service only, and encourages residents to limit activities outside the home and continue to practice social distancing.

SHPC will continue to monitor COVID-19-related legal developments. If you have any questions about how federal, state, or local regulations affect your business, please reach out to one of our experienced attorneys.

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