Today, Governor Charlie Baker issued an emergency Order requiring all businesses and organizations that do not provide “COVID-19 Essential Services” to close their physical workplaces and facilities in Massachusetts to workers, customers and the public as of Tuesday, March 24 at noon until Tuesday, April 7 at noon. The text of the Order is available here. The Order encourages these “non-essential” businesses to continue operations remotely.

The Order also includes a detailed list of businesses that provide “COVID-19 Essential Services” and thus may continue to operate “brick and mortar” facilities during this two-week time period. That list is available here. Although those businesses may remain open, the Order urges those businesses to follow social distancing protocols for workers in accordance with guidance from the Massachusetts Department of Public Health.

If a business is not included in the list attached to the Order, but the business believes that it is providing essential services or functions, the business may request designation as an essential business via an online form here.

Massachusetts employers should consider whether they have the option of keeping their facilities open and related employment issues and concerns:

• Determine whether functions can be required: An employer should review the list of essential services and functions and, if a category of workers is not covered but the employer believes that it should be, consider requesting designation of essential functions via the online form.
  
  If the business provides essential services or functions, then the employer should generally be permitted to require its employees who perform those functions to continue to come to work, consistent with the terms of the Order. 

• Don’t require employees who are not listed to report to the employer’s facilities: If an employer requires an employee to come to work who is not authorized to do so under the Order and the employee is discharged for that refusal, the employee may assert a claim of wrongful termination in violation of public policy against the employer. 

• Be cognizant of leave rights: Employees who are sick, caring for a child whose school is closed or caring for a family member who is sick may have a right to take sick leave or family and medical leave, either under the employer’s policies or applicable state or federal law, including the Families First Coronavirus Response Act, which will go into effect no later than April 2, 2020. These rights also may apply to many employees who otherwise provide essential services or functions. Employers should consult counsel before taking any adverse employment action against an employee who refuses or fails to come to work, even if the employee provides essential services and functions. A summary of the law’s emergency sick leave and emergency family and medical leave provisions can be found in Goodwin’s client alert from last week. 

• Review PTO policies, particularly non-accrual policies: Employers should review their existing paid time off policies. If an employer currently has an unlimited nonaccrual vacation policy, then it should consider at least temporarily amending it to limit the amount of paid time off. Any amendment must be made prospectively and after considering potential contractual rights.   

• Consider implementing additional safety measures: An employer who continues to have employees in the workplace during the COVID-19 pandemic should consider effective ways to improve safety in the workplace. Social distancing should be implemented to the extent possible, which may include spacing employees further apart in the office. Please refer to the CDC’s updated best practices for conducting social distancing here. Other “mitigating measures”  should also be considered, including requiring the use of Personal Protective Equipment (“PPE”) in some instances.  Please refer to OSHA Guidance on Preparing Workplaces for COVID-19 here. 
  
  Access to common areas (e.g., kitchens, open areas)  should be limited so as to avoid having several people in one area. Proper cleaning measures should be undertaken.  See the CDC’s Environmental Cleaning and Disinfection Recommendations here.
  
  Employers may also consider taking employees’ temperatures as a safety measure for others employed at the same workplace. According to the most recent EEOC guidance, temperature checking of employees is permitted during the COVID-19 pandemic, although an employer must treat the information collected as confidential medical information.  

Please note that that many other cities and counties continue to issue new orders and guidance related to those orders, which could render some of the information above out of date at any time, as could any federal action.