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03.24.2020 | Legal Advisory

On March 23, 2020, Governor Baker issued an order mandating the temporary closure of all “non-essential” workplaces beginning at noon on March 24, 2020 and continuing through noon on April 7, 2020 (the “Order”). Exhibit A of the Order identifies 14 COVID-19 Essential Services[1]; organizations that provide services in the functional areas identified may remain open. The Order also prohibits gatherings of more than 10 people. Any organization providing COVID-19 Essential Services is exempt from this limitation but must maintain social distancing within the workplace.

Governor Baker has vested power within the Commissioner of Public Health and the Department of Public Health (the “DPH”) to enforce the Governor’s Order. The Commissioner may promulgate guidance, supplement the terms of the Order, and rely upon the assistance of state or municipal police officers to enforce the Order. 

As required by the Order, DPH issued guidance to assist businesses and organizations with compliance. Per the DPH Assemblage Guidance, the Order does not apply to the operations or activities of any business or organization designated as a COVID-19 Essential Service. The Order does not specify whether a business classified as “essential” has any restrictions on its operations or workforce apart from maintaining social distancing. For example, the Order does not provide guidance on whether all of an essential business’ workforce may work from the business premises, or whether only those employees necessary in providing the essential services can continue working from the business premises.

If an organization’s business functions are not identified on Exhibit A of the Order, organizations should refer to the DPH Assemblage Guidance, which lists additional organizations not subject to the Order (such as certain child care facilities). If an organization does not see its business functions listed on Exhibit A, nor excluded by the DPH guidance, that organization may request designation as an essential business by completing the form found here. The DPH website provides that any business deemed essential pursuant to Exhibit A does not need to request designation as an essential service. Accordingly, organizations are required to self-designate themselves as falling within the purview of Exhibit A. Should an organization self-designate as a COVID-19 Essential Service, it is prudent (but not required) for workers to carry a letter demonstrating the reasons why the organization self-designated as essential. We recommend workers carry a copy of Exhibit A to the Order as well.

Liability for an incorrect self-designation as a COVID-19 Essential Service is incremental. According to the DPH Assemblage Guidance, first time violators are subject to a warning. A second offense may result in a civil citation and fine of up to $300, and only repeated and willful violations may be subject to criminal penalties, which might include a fine of up to $500 or term of imprisonment or both. Businesses and organizations should reach out to a Nutter attorney to assist them with conducting their compliance assessments, drafting their self-designation letters, and any other COVID-19 related needs.

This advisory was prepared by Maya Ginga and Liam O’Connell in Nutter’s Labor, Employment and Benefits practice group. For more information, please contact the authors or your Nutter attorney at 617.439.2000.

This update is for information purposes only and should not be construed as legal advice on any specific facts or circumstances. Under the rules of the Supreme Judicial Court of Massachusetts, this material may be considered as advertising. 

[1] The COVID-19 Essential Services are: 1) health care, public health, human services; 2) law enforcement, public safety, first responders; 3) food and agriculture; 4) energy; 5) water and wastewater; 6) transportation and logistics; 7) public works; 8) communications and information technology; 9) other community-based essential functions and government operations; 10) critical manufacturing; 11) hazardous materials; 12) financial services; 13) chemical; and 14) defense industrial base.