On Monday, March 23, 2020, Massachusetts Governor Charlie Baker issued an executive order closing all non-essential businesses to workers, customers, and the public, effective March 24, 2020 at 12 p.m. until April 7, 2020 at 12 p.m. 

Governor Baker’s announcement means Massachusetts joins a growing list of states issuing similar orders, including New York, New Jersey, Connecticut, Delaware, Illinois, Ohio, Louisiana, and California.

The Department of Homeland Security issued a March 19, 2020 memo describing the “Critical Infrastructure Sectors,” that are allowed to stay open.  Massachusetts’ Order provides a nine-page list identifying 14 “COVID-19 Essential Services” sectors including:

1. Healthcare/Public Health/Human Services;
2. Law Enforcement, Public Safety, First Responders;
3. Food and Agriculture;
4. Energy;
5. Water and Wastewater;
6. Transportation and Logistics;
7. Public Works;
8. Communications and Information Technology;
9. Other Community-Based Essential Functions and Government Operations;
10. Critical Manufacturing;
11. Hazardous Materials;
12. Financial Services;
13. Chemical; and
14. Defense Industrial Base.

Given the immediacy of Governor Baker’s Order, businesses must review the full list to determine whether their business falls under any of the above categories of essential services.    

Businesses should be prepared to communicate why they are eligible to operate according to the DHS memo or state orders.  These audiences includes employees, customers, suppliers, state and federal agencies and elected officials at the local, state and federal level.

For instance, the “Other Community-Based Essential Functions and Government Operations” sector outlines additional miscellaneous essential services that may not otherwise fall under any of the other readily identifiable sectors.  Without carefully reviewing each sector or consulting an attorney to determine the status of your business, you may needlessly forego business activities until April 7, 2020 or be unable to adequately communicate your eligibility to continue operations.

Additionally, if the function of your business is not listed as an essential service, but you believe your business is an entity providing essential services or functions, the Order provides a procedure to request a designation as an essential business.

Indeed, Governor Baker made clear that this Order will be “enforced on a local level.” This means that companies who fail to comply with the Order or needlessly delay a request for a designation as an essential service could face punishment under Section 8 of Chapter 639 of the Acts of 1950, including, but not limited to, fines of $300.00 for each violation or injunctive relief to halt business activity until April 7, 2020.

If you are unsure of your business’s status or need assistance submitting a request for designation as an essential service, Nelson Mullins has established a firm-wide team of attorneys and government relations professionals dedicated to determining whether your business provides “essential services” under Massachusetts’ or any other states’ non-essential business closure orders. 

This team is developing strategies to ensure continuity of operations, preparing documents for use with key audiences and communicating directly with those affected audiences. 

Reach out directly to Bret Cohen or Joseph Donovan with any questions concerning Governor Baker’s or other states’ non-essential business closure orders.

For additional information on COVID-19 related issues, please visit Nelson Mullins COVID-19 resource page or contact a Nelson Mullins attorney.