Massachusetts Increases COVID-19 Restrictions on Businesses and Reverts to Phase III, Step 1 of Reopening Plan

Seyfarth Synopsis: In response to increasing COVID-19 cases in Massachusetts, Governor Charlie Baker issued COVID-19 Orders Nos. 57 and 58, which will return the Commonwealth to Step 1 of Phase 3 of its reopening plan.  The Orders and the accompanying Department of Public Health guidelines will tighten restrictions on Massachusetts businesses. The Orders will also require closure of certain businesses designated as Phase 3 Step 2 industries, including indoor performance venues and certain high-contact indoor recreational businesses.  In addition, capacity limits will be reduced to 40% for most industries, and outdoor gatherings will be limited to 50 persons.  The Orders take effect on Sunday, December 13, 2020.

On Tuesday, December 8, 2020, Governor Baker issued COVID-19 Orders Nos. 57 and 58 in response to increasing COVID-19 infections and hospitalizations.  Both Orders take effect on Sunday, December 13, 2020.  Though the orders impose new restrictions on certain industries, most of the restrictions do not affect businesses that are designated as “COVID-19 Essential Services” under the Governor’s prior COVID-19 Orders.  COVID-19 Order No. 58, along with associated new guidance, rolls back the statewide reopening plan to Phase III, Step 1, and imposes new restrictions on businesses.  These restrictions include:

• Businesses identified as Phase III, Step 2 enterprises in Schedule A to the Order are required to close their brick-and-mortar premises to workers, customers, and the public. These businesses include indoor performance venues used for live performances, such as concert halls and theaters, and indoor recreational venues, such as laser tag arenas, roller skate rinks, trampolines, and obstacle courses.
• Phase I and II businesses, and Phase III, Step 1 businesses, as defined in Schedule A, may only operate pursuant to Phase III, Step 1 Sector Specific COVID-19 workplace safety rules. Covered businesses include manufacturers, hotels, retail stores, restaurants, laboratories, construction companies, and warehouses and distribution centers.
• Capacity limits for indoor and outdoor recreational businesses, driving and flight schools, gyms, health clubs, libraries, museums, retail businesses, offices, places of worship, common areas for lodging businesses, golf facilities, and movie theaters shall be reduced from 50% to 40% occupancy.
• Restaurants and other venues with seated dining must require patrons to wear masks at all times except when eating and drinking, seat no more than six patrons at a table, impose a 90-minute time limit on tables, and no longer permit musical performances at their restaurants. Customers are encouraged to dine only with members of the same household.
• Office employees are required to wear masks at their place of work when not in their own workspace and alone. Office employers are also encouraged to close or limit the use of break rooms. 

Pursuant to COVID-19 Order No. 57, gatherings that are neither subject to sector-specific guidance (other than indoor and outdoor events guidance), nor outdoor gatherings for political expression, nor indoor or outdoor gatherings for religious expression are subject to new restrictions.  These restrictions include:

• All participants at all gatherings, including those at private residences, must maintain 6 feet of social distance from every other participant, except where participants are members of the same household.
• Indoor gatherings at private residences are limited to a maximum of 10 people, while outdoor gatherings are limited to a maximum of 25 people.
• Gatherings at event venues or in public settings are limited to a maximum of 25 people for indoor gatherings and 50 people for outdoor gatherings in a single venue or space. Operators of event venues and event organizers hosting outdoor gatherings of more than 25 attendees must notify and provide certain information to the Local Board of Health about the gathering.

In addition, all gatherings are subject to the following restrictions:

• All gatherings must end and participants must disperse by 9:30 p.m.
• All persons over the age of 5 attending a gathering in a public location must wear face coverings, subject to some exceptions. Face coverings are encouraged for indoor events, but are not required for indoor gatherings of 10 or fewer people.  
• If a host or event venue is notified that an attendee or event worker tested positive for COVID-19, the host or event venue must immediately notify the Local Board of Health of the city or town where the event took place and cooperate with contact tracing efforts. Event hosts or venues that fail to timely report positive cases and cooperate with contact tracing and case investigations may be subject to penalties.

Note that COVID Order No. 57 exempts certain businesses and organizations from its coverage, including governmental entities, schools and health care facilities. 

We expect the Governor, Department of Labor Standards, and Secretary of the Executive Office for Energy and Environmental Affairs to issue additional updates to sector-specific protocols.  We will report on any significant updates.