Massachusetts Issues New COVID-19 Restrictions Affecting Employers and Individuals

Seyfarth Synopsis:  Governor Baker and the Massachusetts Department of Public Health have issued new restrictions on Massachusetts residents and businesses.  The restrictions include a Stay-At-Home Advisory, an Order Requiring Early Closure of Businesses and Activities, a Revised Order Requiring Face Coverings in Public Places, and a Revised Order Further Regulating Gatherings. 

On Monday, November 2, 2020, in response to increasing trends of COVID-19 cases and hospitalizations, Massachusetts Governor Charlie Baker and the Department of Public Health (“DPH”) issued a number of COVID-19 related measures increasing restrictions on Massachusetts businesses and residents.  The new restrictions, which go into effect on November 6, 2020, include a revised Stay-At-Home Advisory, mandatory early business closures, revised gathering restrictions, and heightened face covering requirements in public places.  The Baker administration has also updated sector-specific protocols with respect to various industries and work environments, including, among others, retail businesses, theaters and performance businesses, and close contact personal services.

Stay-At-Home Advisory.  The DPH has issued an updated Stay-At-Home Advisory, which advises all Massachusetts residents to stay home between the hours of 10:00 p.m. and 5:00 a.m.  The Advisory provides exceptions for individuals who need to leave home to go to work or school, or for essential needs such as emergency medical care, going to the grocery store or pharmacy, picking up takeout food, or receiving deliveries.  The Advisory further instructs residents not to hold gatherings in the home during the restricted hours with anyone from outside of the household.  For now, it appears that the Advisory is a recommendation, and there are currently no civil or criminal penalties for violations.

Early Closure of Businesses and Activities.  Governor Baker has issued a new Executive Order requiring that certain businesses and activities close at 9:30 p.m. each night, including the following:

• In-person dining at restaurants must stop at 9:30 p.m., but takeout and delivery may continue for food and non-alcoholic beverages.
• Liquor stores and other retail establishments that sell alcohol must stop alcohol sales at 9:30 p.m., but may continue to sell other products. In general, the service and sale of alcohol is prohibited during the restricted hours.  This prohibition applies to all retailers, restaurants, private clubs, catering halls, events, casinos, and delivery services licensed to sell alcohol.
• Adult-use marijuana sales, not including medical marijuana sales.
• Indoor and outdoor events.
• Theaters and movie theaters, including drive-in movie theaters, and both outdoor and indoor performance venues.
• Close contact personal services, such as hair and nail salons.
• Gyms, fitness centers, and health clubs.

A full list of businesses required to close at 9:30 p.m. may be accessed here: Order Requiring Early Closing for Certain Businesses and Activities.  Violations may result in a civil fine of up to $500 per violation, injunctions, or in the case of alcohol sales, revocation of license.  With respect to the alcohol and marijuana sale prohibition, each individual sale, delivery, or service made during the mandatory closing period may be treated as a separate violation for purposes of administering fines and penalties.

Face Covering Order.  Governor Baker has also issued a new face-covering order.  All persons over age five must wear face coverings in all public locations, whether indoors or outdoors, regardless of whether they are able to maintain six feet of social distance from others.  Public locations include any place open to the public, including, but not limited to, grocery stores, pharmacies, retail stores, transportation services, public streets, and any location that hosts indoor or outdoor events or performances.  Face coverings are also required in carpools with non-household members.  Private offices and other private places of employment do not appear to be covered by the heightened face covering requirements, but employers must still ensure that their employees wear a face covering when unable to maintain social distance of six feet from others.

The order provides exceptions from the face covering requirement for individuals who cannot wear a face covering due to a medical condition or other disability, or where sector-specific rules permit removal of face coverings, such as while eating or drinking in restaurants, receiving dental care, etc.  If a customer declines to wear a face covering due to a medical or disabling condition, they may not be required to produce documentation verifying the condition.  However, employers and schools may require such documentation of their employees and students in the event they request an accommodation from the face covering requirement.  The revised face covering order is available here: Revised Order Requiring Face Coverings in Public Places.  Violations of this order may result in a civil fine up to $300 per violation. 

Gatherings Order.  Governor Baker has issued a new order further restricting gatherings.  The new order reduces the size limit for gatherings in private residences to 10 people if indoors, and 25 people if outdoors.  Significantly, according to the order, all gatherings, regardless of size or location, must end and disperse by 9:30 p.m. 

The previous limits on gatherings held in public space and at event venues, such as wedding venues, remain the same: 100 persons in lower-risk communities; 50 persons in non-lower-risk communities.  The new gatherings order also requires organizers of gatherings to report known positive COVID-19 cases to the local health department in their community, and to cooperate with contact tracing efforts.  Fines for violating the gatherings order will be $500 for each person above the limit at the gathering.  The new gatherings order is available here: Revised Order Further Regulating Gatherings in the Commonwealth.

Sector-Specific Guidelines. On October 29, 2020, the Governor updated sector-specific requirements with respect to several industries and work environments, including the following:

• Retail Businesses: Retailers may now permit sampling or application of personal goods, such as makeup, perfume, and lotion, only if they provide single-use applicators or have a no-touch option. Otherwise, sampling is prohibited.
• Theaters and Performance Venues: Performance Venues are defined under the revised guidance as a facility where performers are in a designated area, audience members remain in fixed seating during the performance, and seated dining service is not provided. Performers must wear face coverings whenever feasible, and audience members must wear face coverings, except while eating or drinking.  Indoor theaters may permit groups of no more than six people to attend performances together, and intermissions should be eliminated unless necessary.  Singing is not permitted in indoor performance venues.  In municipalities subject to Step 2 of Phase III of the Massachusetts reopening plan, outdoor theaters, indoor theaters, and performance venues may now operate at 50% capacity with no more than 250 people.  Dance areas must remain closed until Phase IV.
• Close Contact Personal Services: Close Contact Personal Service providers must now require all workers to wear a face covering, unless a disability prevents them from wearing one. For beard or skin care, customers may temporarily remove their face coverings during treatment.  Workers must also wear gloves, gowns or smocks, and prescription glasses, safety glasses, or goggles.  Masseuses are not required to wear gloves.
• Arcades and Other Indoor or Outdoor Games and Recreation Businesses: Competitive leagues must now follow the Safety Standards for Youth and Adult Amateur Sports Activities.

We expect the Governor and Department of Public Health to issue additional updates to sector-specific protocols.  We will report on any significant updates.