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COVID-19: Governor Baker Issues Order Closing All “Non-Essential” Businesses Until April 7, 2020

In response to the COVID-19 pandemic, as of this writing, a growing number of states, including California, Illinois, Connecticut, New York, New Jersey, Ohio, Illinois, Pennsylvania and Wisconsin, as well as large cities, such as Miami, New Orleans and Chicago, and counties like Miami-Dade and Dallas County, have issued executive orders restricting companies from requiring “non-essential” employees to come into the workplace. These orders are sometimes referred to as “essential business,” “shelter in place” or “life sustaining businesses.”  

Governor Baker announced that Massachusetts will join this growing number of jurisdictions to restrict business operations for “non-essential” businesses and organizations, COVID-19 Order No. 13 (the Order). The Order went into effect on March 24, 2020, at noon EDT. Exhibit A of the Order assures continued operation of essential services in the Commonwealth, closes certain workplaces and prohibits gatherings of more than 10 people.

The Massachusetts Order

The Order includes an exhibit which identifies the production and service sectors that are designated as "COVID-19 Essential Services,” which are discussed in more detail below. Under the Order, even those businesses and other organizations that provide the services and functions identified as COVID-19 Essential Services are urged to continue operations with allowance for social distancing protocols consistent with guidance provided by the Department of Public Health.

Under the Order, businesses and other organizations that do not provide COVID-19 Essential Services are required to close their physical workplaces and facilities ("brick-and-mortar premises") to workers, customers, and the public as of 12:00 noon on March 24, 2020, and are not permitted to re-open to workers, customers, or the public before 12:00 noon on April 7, 2020. While not allowed to open “brick-and-mortar premises,” these non-essential businesses are nonetheless encouraged to continue operations through “remote means.”

 

The List of COVID-19 Essential Services 

As noted above, the Order provides for an Exhibit that directly addresses what is a COVID-19 Essential Service. While certain industries and services are identified in the Exhibit, the Order permits the Governor to amend the list of COVID-19 Essential Service industries and services as necessary in response to conditions as they develop. In creating the initial list of COVID-19 Essential Services, the Order provides that the Governor based the list on federal guidance with amendments to reflect the needs of Massachusetts’ unique economy.  

Businesses not currently listed as a COVID-19 Essential Service may 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. An online form to apply for designation as an “Essential Service” can be found here .   

Exhibit A to the Order concludes by inviting questions to be directed to: covid19.biz@mass.gov .

Guidance and Enforcement

Under the Order, the Commissioner of Public Health is directed to issue guidance subject to the Governor’s approval, to implement the terms of the Order. In addition, the Order also gives the Commissioner authority to supplement the terms of the Order in the event she determines additional measures are required to ensure that the terms of the Order are observed.

With regard to enforcement, violations of the terms of the Order or the DPH Guidance may result in a criminal penalty pursuant to Section 8 of Chapter 639 of the Acts of 1950 or a civil fine of up to $300 per violation, in the manner provided for non-criminal disposition of violations of municipal by-law, ordinance, rule, or regulation pursuant to G. L. c. 40, § 21D. Enforcement actions are subject to the jurisdiction of the Massachusetts District Court. Additionally, a business violating the Order or the DPH Guidance may well be subject to attention by the media. 

Copyright © 2020 Robinson & Cole LLP. All rights reserved.

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William M. Daley Insurance Coverage Litigation and Business Litigation Attorney Robinson & Cole Providence, RI
Associate

William Maxwell Daley focuses his practice on insurance coverage litigation and business litigation. 

Insurance Litigation

Max is a member of the firm's Insurance + Reinsurance Group. He handles a range of insurance coverage and claims litigation, including matters involving property, liability, life, health, disability, professional liability matters and more.

Business Litigation

As a member of the firm’s Business Litigation Group, Max assists clients facing a range of commercial disputes, including claims of breach of contract; business torts such as fraud...

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Kathleen M. Porter Partner Intellectual Property Transactions  Private Equity  Intellectual Property Counseling and Protection  Trade and Antitrust
Partner

Kathleen Porter is an intellectual property and technology lawyer in the firm's Business Transactions Group and former chair of the firm’s Intellectual Property + Technology Group. Her practice straddles the areas of intellectual property, business transactions, trade regulation, and Internet law and includes import/export control issues, such as compliance and enforcement, competition, privacy, and data security.

Her clients include precision manufacturing, life science, energy, consumer products, software, Internet and e-commerce, and other technology-driven businesses.

Business Transactions

Kathy has extensive experience in structuring and negotiating sophisticated domestic and cross-border commercial transactions, including license, OEM, distribution, manufacturing, and development agreements; acquisitions; supply, distribution outsourcing, and partnering arrangements; strategic alliances; business opportunities; and joint ventures.

Intellectual Property and Technology

Kathy counsels clients on the development, protection, and commercialization of intellectual property and technology. In particular, she has significant experience with e-commerce and Internet law issues, specifically online contracting, including click-thru and browse-wrap agreements, mobile applications, social media, online advertising, promotions, blogs, testimonials and sweepstakes, terms of use, and electronic signatures; and with online and Internet-related agreements, including website development and hosting agreements and content and other licensing arrangements.

Trade Regulation/Competition

Kathy advises clients on competition and regulatory issues, including price restraints and discrimination, volume discounts, MAP and other pricing programs, territorial and exclusive licensing restrictions, joint buying programs and other trade association or group activities, consumer protection, promotions, and advertising. She also counsels clients on competition law compliance, including the preparation of competition law premerger filings, and coordinates the preparation of foreign competition law filings.

International

In addition to the cross-border transactional representation of domestic and international clients, Kathy regularly advises foreign companies on their entry into the U.S. market, including corporate issues such as entity selection, structuring commercial agreements and marketing and sales issues, intellectual property protection, and day-to-day legal advice. 

Data Security/Privacy

Kathy counsels businesses on the development and implementation of data security and privacy practices to comply with the patchwork of laws and rules applicable to the collection, use, safeguarding, sharing, and transfer of protected or personal data. She regularly structures arrangements with promoters, marketers, website exchanges, and other third parties for the purchase, sale, sharing, and safeguarding of personal data. 

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Barrett P. Wilson-Murphy Business Transactions Attorney Robinson & Cole Boston, MA
Associate

Barrett Wilson-Murphy advises clients on legal matters relating to middle market domestic and international financings and restructuring transactions. He represents financial institutions, funds, finance companies and other providers of capital in various commercial loan transactions and in acquisition and private equity transactions. Barrett has experience working with clients with respect to mergers and acquisitions, corporate governance and compliance matters. He is a member of the firm’s Business Transactions Group. 

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