Massachusetts Softens COVID-19 Restrictions on “Non-Essential” Remote-Fulfillment Businesses

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Seyfarth Synopsis:  On May 4, 2020, the Massachusetts Executive Office of Housing and Economic Development (“EOHED”) issued guidance relaxing its previous COVID-19 related restrictions on Massachusetts retailers and distribution centers.  Under the new guidance, non-essential retail and distribution businesses may bring in “a small number” of employees to fulfill online or phone orders, provided these businesses comply with strict COVID-19 protocols.

As we previously reported, on March 23, 2020, Massachusetts Governor Charlie Baker issued COVID-19 Order No. 13, requiring businesses and organizations whose workforces are not engaged and working in production and service sectors designated as “COVID-19 Essential Services” to temporarily close their brick-and-mortar facilities.  The Governor has twice extended the statewide order, which currently runs through May 18, 2020.

The EOHED has regularly updated its COVID-19 Essential Services FAQs, which describe in more detail what is and what is not considered an essential service under the Governor’s Order.  On April 8, 2020, we updated you as to the significant restrictions the state had placed on “e-commerce” businesses, which could continue to operate only if they supported certain approved COVID-19 related activities.

On May 4, 2020, the EOHED softened these restrictions on non-essential retailers and distribution facilities by allowing at least some employees to return to work.  While these businesses must remain closed to the public, the state will allow these businesses to bring in “a small number of employees” to fulfill online or phone orders, provided these businesses comply with certain remote fulfillment guidelines, including the following:

• No Manufacturing. Under the new guidance, the employees brought in to remotely fulfill orders may only be engaged in the packaging and delivery or shipping of those orders.  Non-essential businesses may not bring in employees to perform manufacturing work. 
• “Small Number of Employees.” In closed facilities used for remote order fulfillment, the guidance provides specific requirements as to the number of employees the business may allow onto its premises at a given time:
  • In facilities under 10,000 square feet, a maximum of 3 employees may be allowed onsite at a time;
  • In facilities between 10,000 - 30,000 square feet, a maximum of 5 employees may be allowed onsite at a time; and
  • In facilities larger than 30,000 square feet, a maximum of 7 employees may be allowed onsite at a time.
  • Note, however, that only those employees engaged in remote order fulfillment unrelated to selling, manufacturing, production, or distribution of personal protection equipment (“PPE”) or materials used to manufacture PPE are subject to this cap.
• Social Distancing and Health Protocols. The guidance requires all employees to wear face coverings while onsite, and all employees must maintain six feet of social distance at all times.  This goes for employees engaged in both PPE and non-PPE related work.  Employers are required to stagger employees’ work schedules to minimize potential contact.  In addition, all facilities must provide employees with ready access to hand sanitizer and hand washing facilities, and employee workspaces must be cleaned frequently.  Businesses must also allow for sufficient off-hour time to sanitize and clean their facilities when employees are not present.
• Deliveries. Any deliveries made by these employees must be “no-contact” deliveries: items must be left in mailboxes, mailrooms, garages, lobbies, at doorsteps, or similar no-contact drop-off points.
• Health Screening. Employers must require employees to self-administer a temperature check before they begin each shift.  Employees with COVID-19 related symptoms may not report to work.  Employees in quarantine due to exposure to COVID-19 must remain under quarantine for 14 days from the exposure, and may not report to work. 
• Enforcement. The guidance requires strict adherence to these workplace guidelines, and states that those businesses found in non-compliance, or which are unable to fully comply, will be closed immediately.

This guidance may offer some insight into what the initial phase of the state’s return to work plan will look like.  Governor Baker has announced the creation of an Economic Reopening Advisory Board, which is set to deliver an economic reopening plan to the Governor by May 18, 2020.  We will keep you informed as to any significant developments.