Update: On March 31, Governor Baker extended this Order through May 4, 2020.

On March 23, 2020, Massachusetts Governor Charlie Baker issued an executive order titled “Order Assuring Continued Operation of Essential Services in the Commonwealth, Closing Certain Workplaces, and Prohibiting Gatherings of More than 10 People” (“COVID-19 Order No. 13”).  While not a shelter-in-place order as employers are seeing in other states, the order mandates the shutdown of the physical workplace and facilities for non-essential businesses starting at noon on March 24, 2020 and ending on April 7, 2020 (though this date may be extended).

What are essential businesses?

In a nine-page exhibit to the executive order, “COVID-19 Essential Services,” Governor Baker identifies all services and functions that are deemed essential to promote the public health and welfare of the Commonwealth.  We recommend employers reference the complete list to determine if the company’s business falls within one of the exceptions.  The industries on the list include:

• Healthcare/Public Health/Human Services;
• Law Enforcement/Public Safety/First Responders;
• Food and Agriculture;
• Energy: Electric Industry, Petroleum Workers, Natural and Propane Gas Workers, Steam Workers;
• Water and Wastewater;
• Transportation and Logistics;
• Public Works;
• Communications and Information Technology;
• Critical Manufacturing;
• Hazardous Materials;
• Financial Services;
• Chemical;
• Defense Industrial Base; and
• Other Community-Based Essential Functions and Government Operations, such as hotels.

Restaurants, bars, and other establishments that sell food and beverage products to the public may 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.

A link to the complete list of COVID-19 Essential Services is available here.  If an employer’s business is not on the Commonwealth’s COVID-19 Essential Services list, but the employer believes that it is essential or it is an entity providing essential services or functions, the employer may request designation as an essential business via the process linked here.  Any businesses not included on the Essential Services list must shut their doors to workers, customers and the public on March 24, 2020 at noon. Any business that violates the executive order is subject to a criminal penalty or a civil fine of up to $300 per violation. 

COVID-19 Order No. 13 indicates the list of essential services may be amended so we encourage employers to check the list periodically to re-evaluate whether they are considered an essential business.

If an employer is an essential business, may it continue to operate as usual?

Even if a business qualifies as an essential business, the Commonwealth is urging employers to follow social distancing protocols for workers in accordance with guidance from the Department of Public Health.  Further, employers should consider which functions within their business must be performed on site versus those that may be performed remotely at home.

With businesses shutting down, what options does an employer have for its employees?

Telework:  The Commonwealth is encouraging non-essential businesses to continue to operate by allowing employees to work remotely from their homes. (Presumably most employees that can do so are already doing so.)  If employees are working remotely, we recommend a telecommute policy to ensure continued compliance with wage and hour laws and a mutual understanding regarding employees’ responsibilities.  For example, companies should ensure that non-exempt (eligible for overtime) employees are recording their time accurately, and all employees are following practices and procedures with respect to confidentiality and cybersecurity. 

Furloughs:  If employees are not working, employers can put them on “furlough,” meaning their hours and pay are reduced to zero.  Employees may be permitted to use vacation, paid time off or earned sick time.  Massachusetts employers cannot require their employees to exhaust their earned sick time.  Whether an employee continues to receive benefits will depend on the terms of the employer’s benefit plans.

Termination / layoff:  If employees cannot work, employers can also terminate their employment.  Note that under Massachusetts law, terminated employees need to be paid their final wages, including their accrued, unused vacation time, on the date of termination.  Also, terminating large numbers of employees may trigger notice requirements under the federal Worker Adjustment and Retraining Notification Act (WARN) for certain employers.

What about unemployment benefits?

According to the Massachusetts Division of Unemployment Assistance (“DUA”), individuals who are out of work because of a temporary shutdown (such as under COVID-19 Order No. 13) may obtain unemployment benefits, so long as they remain in contact with their employers during the shutdown, and are available for any work their employer may have for them that they are able to do.  Such benefits run for 8 weeks, though the DUA says it may extend the time period.

In addition to employees who have been terminated, partial unemployment benefits are also available to workers whose pay has been reduced by 1/3 or more.  Likewise, the DUA states that individuals can seek unemployment benefits if they are: (1) quarantined due to an order by a civil authority or medical professional; (2) leave employment due to reasonable risk of exposure or infection; or (3) leave work to care for a family member.

Normally, unemployment claimants are required to wait a week before receiving benefits, but that requirement has been waived during this pandemic.

What should be our next steps?

After determining whether a company’s business is essential (as defined by COVID-19 Order No. 13), employers should identify the minimum staff needed to continue to operate essential businesses on site.  For non-essential on-site employees and non-essential businesses, companies should consult with legal counsel regarding effective telecommute policies and wage and hour and possible WARN obligations for any reduction in work hours or employees.