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March 2020

Massachusetts Executive Order - COVID-19 Order No. 13: Governor Baker’s Directive Regarding Essential Businesses

March 25, 2020;
Updated March 28, 2020 to reflect new guidance from the U.S. Department of Labor

Massachusetts Governor Baker issued an additional emergency order on March 23, 2020 requiring all businesses and organizations that do not provide “COVID-19 Essential Services” to close their ‘brick and mortar” workplaces and facilities to workers, customers, and the public as of 12 p.m. Tuesday, March 24 until 12 p.m. Tuesday, April 7. These businesses are encouraged to continue operations remotely. 

During his press conference, the Governor emphasized that he does not believe Massachusetts residents can be confined to their homes and does not support a home confinement order for public health reasons.  That said, due to the evolving spread of COVID-19 in Massachusetts, he directed the Department of Public Health to issue a stay at home advisory outlining self-isolation and social distancing protocols.  Residents are advised to stay home and avoid unnecessary travel and other unnecessary activities during this two-week time period.

The Governor said that he expects people to go to grocery stores, buy gasoline, and go for walks.  He emphasized the importance of exercising social distancing while doing so, noting that if you are at a park for fresh air and exercise you should be not be starting pickup basketball or football games.  He also noted that public transportation will continue to operate, with additional sanitation and social distancing practices.  

In additional March 25, 2020 guidance to municipalities, the Governor confirms that Order No. 13 is issued under the Massachusetts Civil Defense Act.  As such, any inconsistent municipal rule, regulation, ordinance or by-law is inoperative.  In particular, the most recent guidance makes clear that construction projects are continuous essential projects requiring uniform, statewide management during this crisis and should follow the state’s guidelines, rather than individual municipal requirements.

Based on federal guidance, but amended to reflect Massachusetts economy, the list of “essential” business is fairly extensive. It includes operations in the following categories, and in most cases those businesses supporting them through manufacturing, processing and transportation, and distribution.  The list, available in full here, is summarized below:

1.    Health Care/ Public Health / Human Services

  • Research and laboratory services, including testing and treatment of COVID-19
  • Doctor and dentist offices 
  • Hospitals and laboratories 
  • Workers in other medical facilities including licensed medical marijuana retailers
  • Workers in other 24/7 community resident services
  • Manufacturing, distributing, warehousing and supplying of pharmaceuticals, including research and development
  • Consumer health products and services
  • Health care plans and health care data
  • Community-based public health functions, that cannot practically work remotely
  • Shelters, elder care, including adult day care home health care workers and aides
  • Pharmacies
  • Funeral homes, crematoriums, and cemeteries

2.   Law Enforcement, Public Safety, First Responders

  • Police
  • Prisons
  • Fire
  • Emergency Medical Technicians
  • 911 call centers
  • Fusion centers
  • Hazardous material responders

3.    Food and Agriculture

  • Grocery stores, farmers markets, farm stands, liquor stores and supporting industries
  • Restaurant carry-out and quick serve food operations and supporting industries
  • Seafood and fishing and supporting industries
  • Company cafeterias used to feed employees and food service in residential schools with students who are unable to leave campus
  • Food testing labs
  • Food assistance programs
  • Veterinary and animal health services

4.   Energy and Utilities

  • Electricity industry including power generation, fuel supply and transmission, including nuclear generation, environmental remediation/monitoring
  • Petroleum product storage, pipeline, marine transport, terminals, refineries, rail transport, road transport, marine transport
  • Onshore and offshore operations for maintenance and emergency response
  • Gas stations
  • Natural and propane gas transmission and distribution pipelines, including processing, compressor stations, and road transport, storage
  • Liquefied Natural Gas (LNG) facilities
  • Propane gas storage, transmission, and distribution centers
  • Steam distribution companies’ provision of district heating and any electric generation

5.    Transportation and Logistics

  • Airports/Airlines
  • Commercial trucking
  • Mass transit and rail
  • Car rental
  • Maritime transportation
  • Postal and shipping, including private companies
  • Moving and storage services
  • Vehicle maintenance

6.    Public Works

  • Waste and Wastewater infrastructure
  • Water authorities
  • Dam maintenance and support
  • Roads, bridges and traffic support
  • Plumbers, electricians, exterminators, inspectors necessary to maintaining the safety, sanitation
  • Solid and Hazardous waste management
  • Licensed site clean-up professionals and other workers addressing hazardous spills, waste sites, and remediation
  • State parts and wildlife management areas water supply protection lands, and other critical natural resources
  • Storm clean-up operations (e.g., foresters)

7.   Communications and Information Technology

  • Communications infrastructure
  • Radio, television and news media
  • Infrastructure construction, restoration, and support, including construction and engineering of fiber optic cables
  • Installation, maintenance and repair technicians that establish, support or repair service as needed
  • Data centers
  • Customer service and support centers
  • Dispatchers involved with service repair and restoration
  • Information Technology, but not limited to Network Operations Command Center, Broadcast Operations Control Center and Security Operations Command Center
  • Data center operators, including system administrators, HVAC & electrical engineers, security personnel, IT managers, data transfer solutions engineers, software and hardware engineers, and database administrators
  • Critical infrastructure support for medical, communications, computing, web-based services and critical manufacturing
  • Janitorial/cleaning services

8.   Other Community-Based Essential Functions and Government Operations

  • Inspectional services
  • Security services
  • Elections services
  • Mission Essential Functions and communications networks
  • Trade Officials (FTA negotiators; international data flow administrators)
  • Weather forecasters
  • Digital systems infrastructure support
  • Transportation and Registry of Motor Vehicles
  • Trade in support of the national, state and local emergency response supply chain
  • Emergency childcare programs, residential schools for students with disabilities, K-12 schools, colleges, and universities for purposes of facilitating distance learning, provision of school meals, or performing other essential student support functions, if operating under rules for social distancing
  • Hotels and other places of accommodation
  • Critical government functions
  • Construction
  • Public benefits such as subsidized health care, food programs, residential and congregate care programs, shelter, in-home supportive services, child welfare, juvenile justice programs, adult protective services and social services, and other necessities of life for economically disadvantaged or otherwise needy individuals (including family members)
  • Employee benefit services
  • Commercial retail stores that supply essential sectors, including convenience stores, pet supply stores, auto supplies and repair, hardware and home improvement, and home appliance retailers
  • Laundromats and laundry services
  • Training for essential workers for all identified critical sectors
  • Places of worship

9.   Critical Manufacturing

  • Manufacturing of materials and products needed for medical supply chains including personal protective equipment and hygiene products, transportation, energy, communications, food and agriculture, chemical manufacturing, nuclear facilities, the operation of dams, water and wastewater treatment, emergency services, and the defense industrial base.

10.   Hazardous Materials

  • Medical waste
  • Hazardous materials response and cleanup

11.   Financial Services

  • Payroll support  
  • Banks 

12.   Chemical

  • Chemical and industrial gas supply  including manufacture, packaging, storage, and transportation
  • Transportation of chemicals, including those supporting tank truck cleaning facilities and packaging manufacture
  • Cleaning and medical solutions, personal protective equipment, and packaging that prevents the contamination of food, water, medicine, among others essential products

13.   Defense Industrial Base

  • Defense and national security related business and operation supporting the U.S. Government or U.S. Military

Non-essential businesses are encouraged to continue activities that are conducted offsite (e.g., employee’s or customer’s home) and/or by telecommuting or working from home. If you believe your business should be deemed “essential” or it is an entity providing essential services or functions, you may request designation as an essential business by completing the form located here.

What else does Order No. 13 Cover?

On March 10, 2020, Governor Charlie Baker declared a state of emergency, giving the Administration more flexibility to respond to the coronavirus outbreak and since then has issued a series of Orders addressing response to COVID-19 that range from school closures to professional license extensions.  The full list is here.

Order 13 advises residents over 70 years of age or with underlying health conditions, who are considered at high risk when exposed to COVID-19, to limit social interactions with other people as much as possible. 

Order 13 also limits gatherings to 10 people during the State of Emergency, a reduction from the 25 person limit established he March 15, 2020 titled “Order Prohibiting Gatherings of More than 25 people and On-Premises Consumption of Food or Drink,” which is revoked and replaced by Order 13.  This limit includes community, civic, public, leisure, faith-based events, and any similar event or activity that brings together more than 10 persons in any confined indoor or outdoor space. The Order does not prohibit gatherings of more than 10 people in an unconfined outdoor space, like a park or athletic field.

Changes to Your Workforce

Whether or not your business is deemed “essential,” you may be considering changes to your workforce in response to the economic impact of the pandemic.  Such changes may include furloughs, lay-offs or reducing employees pay or hours.

Consider all of your options carefully before making any decision.  Whether or not notice is legally required in each instance, we recommend all employers provide written notice to employees of their decisions, including an explanation of the rationale and assurance that these measures are only being taken in response to the pandemic and with the ultimate goal of returning to business as usual in the near future. 

Furlough: Furloughed employees remain employed with all or part of their employment temporarily suspended, during which they do not receive pay.  That means that they must not work during furloughed hours.  Employees remain covered by health benefits and other policies or agreements, although an employer may restrict uses of vacation or PTO during a furlough.  Employees may be entitled to sick pay under Massachusetts paid sick leave law and are entitled to federal paid sick leave under FFCRA (see below) if the employer has 500 or fewer employees.

Layoff and Termination: Laid-off and terminated employees do not remain employed and have no guarantee of returning to work.  Notice is required and the employee should be provided with the Unemployment Pamphlet produced by the Massachusetts Department of Unemployment Assistance, with the employer’s FEIN and address included.  Employers must pay all due wages in full upon layoff (vacation and holiday included), but need not include accrued sick time.  If the employee is salaried, the employer need only pay them through the final day of work, unless contractually obligated otherwise. 

Reduced Hours/Pay: Non-exempt, non-tipped employees must be paid at least minimum wage: $11 per hour (increased to $12.00 on September 1, 2020).

WorkShare:  Massachusetts offers a WorkShare program as an alternative to layoffs.  Employees work reduced hours while collecting unemployment benefits to supplement their lower wages.  Instead of a full layoff, employees can agree to a partial lay-off. WorkShare can include salaried workers.

Other Laws to Keep in Mind:

Mass Earned Sick Time Law:

Massachusetts employees have the right to earn and take sick leave from work.  The Earned Sick Time Law entitles Massachusetts employees to earn up to 40 hours per year of sick leave to address certain personal and family issues.  See M.G.L. ch. 149, § 148C; 940 CMR § 33.00.  The number of hours to which an employee is entitled is related to the number of hours worked.  Employees are eligible for a minimum of 1-hour of earned sick leave for every 30-hours worked and can accrue and use up to 40-hours per calendar year. 

All employers must provide earned sick time, but only employers of 11 or more employees must provide earned sick time that is paid.  Smaller employers must also provide earned sick time, but it may be unpaid. 

Mass Mini-WARN Law:

Massachusetts has a mini-WARN law.  See MA Gen. Laws ch. 151A, §§ 71A et seq.  Massachusetts follows the federal WARN Act, but does address plant closings under MA. Gen. Laws ch. 151A § 71A–H.  It provides plant closing procedures under 71B.

  • “Partial Closing” a permanent cessation of a major discrete portion of the business conducted at a facility which results in the termination of a significant number of the employees of said facility and which affects workers and communities in a manner similar to that of plant closings.  (MA Gen. Laws ch. 151A § 71A).
  • “Plant closing” a permanent cessation or reduction of business at a facility which results or will result as determined by the director in the permanent separation of at least ninety per cent of the employees of said facility within a period of six months prior to the date of certification or with such other period as the director shall prescribe, provided that such period shall fall within the six month period prior to the date of certification.  (MA Gen. Laws ch. 151A § 71A).

Mass Unemployment Insurance and Benefits

In response to the COVID-19 pandemic, certain work-search requirements have been waived for including attending seminars Mass Hire Career Centers, missing deadlines due to the effects of CVOD019 unemployment claimants.  Employees may go here to file their claims.

New Federal Sick Leave Law

The Families First Coronavirus Response Act ("FFCRA") becomes effective April 1, 2020.

  • Employers of up to 500 employees (see below for calculation method) must provide 80 hours of paid sick leave for full time employees (average hours worked over two weeks for part time) if there is work for the employee available and the employee is unable to work (or telework) because:
  1. The employee is subject to a Federal, State, or local quarantine or isolation order related to COVID-19.  (This includes any government order directing people to remain at home unless they work for an essential business);
  2. The employee has been advised by a healthcare provider to self-quarantine due to concerns related to COVID-19;
  3. The employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis;
  4. The employee is caring for an individual who is subject to an order as described in subparagraph 1 above or has been advised as described in paragraph 2 above; or
  5. The employee is caring for a child of such employee if the school or place of care for the child has been closed, or the childcare provider for the child is unavailable, due to COVID-19 precautions.
  • If your business closed before or after April 1 due to lack of business, or if required to close pursuant to Federal, State or local directive, sick leave is not due.
  • Intermittent sick leave is permitted with the consent of the employer (it is not required).
  • If business closes while an employee is on FFCRA sick leave, they must be paid for leave through the date of closure.
  • Businesses with less than 50 employees are potentially exempt from providing sick leave pursuant to reasons four and five above (as amended by the CARES Act) and should document any hardship presented by providing this leave (after considering the impact of potential tax credits) and wait for further guidance from the DOL.
  • Employees may use FFCRA paid sick leave before using state or local paid sick leave, or accrued PTO.
  • Paid leave provided prior to April 1, 2020, does not count to fulfill obligations under the FFCRA.
  • Employers must require documentation in support of the reason for leave and include:  
    • Employee’s name, qualifying reason for requesting leave, statement that the employee is unable to work, including telework, for that reason, and the date(s) for which leave is requested; and
    • Documentation including a copy of the Federal, State or local quarantine or isolation order related to COVID-19 applicable to the employee (reason 1 above) or written documentation by a health care provider advising the employee to self-quarantine due to concerns related to COVID-19 (reasons 2 to 4 above) or notice that has been posted on a government, school, or day care website, or published in a newspaper, or an email from an employee or official of the school, place of care, or child care provider (reason 5 above). 
  • If you intend to claim a tax credit under the FFCRA for payment of sick leave wages, you should retain the FFCRA documentation in your records.

How Much to Pay – Employees must be paid based on their required compensation as follows:

  • Regular rate of pay subject to a limit of: $511 per day and $5,110 in the aggregate for a use described in paragraph (1), (2), or (3) above; or
  • Two-thirds of the regular rate of pay subject to a limit of: $200 per day and $2,000 in the aggregate for a use described in paragraph (4), (5), or (6) above.

Emergency Federal Medical Leave Expansion Act 

The Emergency Federal Medical Leave Expansion Act ("EFMLE") becomes effective April 1, 2020.

  • The EFMLE applies under the following circumstances:
  1. The EFMLE applies to employers with fewer than 500 employees (see below);
  2. Employees must be employed at least 30 calendar days at the time leave is requested;
  3. The need for leave must be a Qualified Need Related to A Public Health Emergency (“PHE”);
  4. A PHE exists when declared by a Federal, State or local authority due to COVID-19; and
  5. The employee must be restored to their position upon return from leave.
  • An employee can request this leave for a very narrow reason: if there is work for the employee and they are unable to work (or telework) due to the need to care for their child under 18 years of age if the child’s elementary or secondary school or place of care is closed, or the care provider of such child is unavailable, due to a PHE.
  • Intermittent expanded medical leave is permitted with the consent of the employer (it is not required).
  • If your business closed before or after April 1 due to lack of business or if required to close pursuant to Federal, State or local directive, expanded medical leave is not due.
  • If your business closes while an employee is on expanded medical leave, employees must be paid for leave through the date of closure.
  • Businesses with less than 50 employees are potentially exempt from providing sick leave pursuant to reasons four and five above (as amended by the CARES Act) and should document any hardship presented by providing this leave (after considering the impact of potential tax credits) and wait for further guidance from the DOL. 

The factors are not evaluated as stand-alone.  The entire relationship is to be reviewed in its totality. 

Visit our COVID-19 Hub for ongoing updates.

Employment Law

Thomas C. Blatchley

Employment Law