By Meaghan E. Murphy, Esq.

On Monday afternoon, following a concerning increase in COVID-19 cases and hospitalizations in Massachusetts, Governor Charlie Baker announced a series of executive orders affecting the Commonwealth’s reopening plans. According to Gov. Baker, these changes are designed to further limit activities that could lead to COVID-19 transmission. The changes are effective Friday, November 6, and undoubtedly will impact employers throughout Massachusetts.

Under one of the orders, certain businesses must close every night by 9:30 p.m. This includes restaurants (although takeout and delivery are still permitted), liquor stores, entertainment venues, indoor and outdoor recreational facilities, personal services, fitness centers and health clubs, and museums and similar facilities. Sales of liquor, including at a grocery store, and adult-use cannabis are prohibited after 9:30 p.m. The 9:30 p.m. closure requirement is aligned with the Stay At Home Advisory advising individuals to stay at home between the hours of 10 p.m. and 5 a.m.

The order states that while these businesses must be closed to the public by 9:30 p.m. to allow people to get home before 10 p.m., they can keep their premises open to employees and other workers and otherwise conduct business activities and operations. That means individuals are not subject to the 10 p.m. to 5 a.m. stay-at-home advisory if they are working (or presumably traveling to or from work), and employers can continue to schedule workers for work during those hours.

Under another order, Gov. Baker announced material changes to mask or face covering requirements. All persons over age 5 must wear a mask or cloth face covering in public locations, even where they are able to maintain 6 feet of distance from others. Public locations include the following:

[A]ny place open to the public including, without limitation, grocery stores, pharmacies, and other retail stores; public transportation, taxis, livery, and other ridesharing vehicles; public streets and ways; and any location that hosts indoor or outdoor events or performances. Masks or cloth face coverings are also required when in a carpool with non-household members.

The order allows an exception for, among other things, persons who cannot wear a mask or face-covering due to a medical or disabling condition. Employers can now require employees who claim they cannot wear a face-covering due to a medical or disabling condition to provide proof of such condition. Absent such a claim by an employee, employers open to the public should require employees to wear masks at the workplace at all times, regardless of whether they are able to socially distance. That includes in company vehicles (or personal vehicles driven for company business) if an employee is riding with a non-household member. The order further states that a business may decline entry to an individual who refuses to wear a mask or cloth face covering for non-medical reasons.

Gov. Baker also limited gathering/event sizes, including those at private residences. State and local authorities are authorized to enforce the orders. An individual who fails to comply with parts of the orders could be issued in a civil fine of up to $500 per violation. Businesses with liquor licenses that violate the orders risk jeopardizing their liquor licenses.

As you’ve likely seen in the news recently, the number of new cases across the entire country have surged to record levels leading other states to take similar action.

In neighboring Connecticut, Governor Lamont announced this week that the state would be rolling back some of the openings under Phase 3 in what he called “Phase 2.1.” The changes are also expected to take effect Friday, November 6, and more details are promised later this week. Connecticut similarly modified restrictions on restaurants, entertainment venues, and gathering/event sizes. For example, restaurants, except as to takeout and delivery, must be closed by 9:30 p.m.

Governor Lamont also announced additional recommendations aimed at businesses:

• Employers should maximize work from home
• Non-essential business travel should be cancelled or postponed
• He encouraged those 60 or older, or those who are high risk, to take extra precautions.
• He encouraged everyone to stay at home from 10 p.m. to 5 a.m.
• Events and gatherings should end by 9:30 p.m.

We may continue to see Massachusetts and other states roll back or pause reopening plans due to the spike in COVID-19 cases in an effort to slow its transmission.