Massachusetts Provides Updated Guidance Concerning COVID-19 Essential Services

The amendment adds more specifics about the kinds of businesses in existing categories which will be considered essential and accordingly may operate their essential services from their facilities. The amendment adds a few new categories of essential services. The FAQs, however, make more explicit that if a business is not considered essential, “that business must cease all in-person activities at its bricks and mortar facilities.”
 
The FAQs address very generally how a business that is uncertain whether it is non-essential should decide (short of a formal request from the Commonwealth to be determined essential) whether to continue operations from its facility. The business should “make a good faith determination about whether it is ‘non-essential’, based on: i. the Order’s purpose, which is to ‘minimize all unnecessary activities outside of the home during the state of emergency’; and ii. how similar businesses, organizations, and facilities are treated under the Order.” If the business remains open, it must “strictly adhere” to “social distancing and environmental cleaning and disinfection” guidelines. 
 
The FAQs reiterate that “the owner of a non-essential business … may go to your business facility as needed to take care of crucial tasks that cannot be done remotely or to retrieve necessary materials or documents. Your employees may not go to your bricks-and-mortar place.”

The amended list is long, and the Commonwealth has not issued responses for certain categories on the FAQs page, indicating they will be updated later. The following are highlights of the amended list:

Healthcare, Public Health, and Human Services

• Broadened definitions to make clear this includes persons other than medical personnel and includes biomedical facilities, a wide range of healthcare facilities of different kinds, "and retail facilities specializing in medical good[s] and supplies."
• A broader definition of personnel working for manufacturers supplying to the healthcare industry, which includes biotech companies and parts suppliers, and businesses and workers necessary for the supply chain for those manufacturers.

Law Enforcement, Public safety, and First Responders

• These definitions were clarified to make clear private entities supplying the essential services also are included.
• Included are workers supporting the manufacturing of safety equipment and uniforms, and generally those who "manufacture, or supply equipment and services supporting law enforcement emergency service and response operations."

Food and Agriculture

• A broadened list of retail establishments that now includes nurseries, greenhouses, and garden centers.
  • However, only to the extent they sell food for people or pets, “food plants”, or "beverage products (including liquor stores)".
• This includes retail customer support service and IT staff necessary for online and pickup and delivery services.
• Clarifies that businesses and workers involved in the distribution of food, feed, and beverage include those involved in supplying the ingredients used in those products.

Energy

• This now includes many more categories of workers and businesses involved in many different aspects of energy distribution, transmission, maintenance, and service as well as “manufacturers or distributors of equipment and parts used by the various energy sectors.”
• If your business is involved in "supporting the energy sector… or [has workers] who are needed to monitor, operate, engineer, and maintain the reliability, safety, environmental health, and physical and cyber security of the energy system" it can probably fit within one of the many expanded definitions.

Water and Wastewater

• No material changes.

Transportation and Logistics

• Much clearer language including as essential workers "supporting the distribution of food, pharmaceuticals … and other medical materials, fuels, chemicals needed for water or water treatment and energy."
• This now includes "Employees supporting personal and commercial transportation services…." This expressly includes rideshare operators, rental car companies,  towing services, vehicle repair services, auto body shops, and automobile dealership service operations.
• Courier, last-mile delivery services and related workers now are clearly covered.  

Public Works and Infrastructure Support Services

• Somewhat expanded definitions of public works and infrastructure.

Communications and Information Technology

• "Network Operations staff, engineers and/or technicians to include IT managers and staff, HVAC & electrical engineers, security personnel, software and hardware engineers, and database administrators that manage the network or operate facilities."
• The FAQs make clear “independent IT workers/contractors [are] still allowed to operate.”
• Personnel necessary to support the hardware of IT infrastructure including "construction of new facilities and deployment of new technology as these are required to address congestion or customer usage due to unprecedented use of remote services."
• “Workers providing electronic security, fire, monitoring, and life safety services, and to ensure physical security, cleanliness, and safety of facilities and personnel.…"
• Critical customer support retail establishments and operations.
• Clarified that workers who support critical IT infrastructure up and down the manufacturing and supply chain including for HVAC and electrical equipment are included.
• "Employees required in-person to support Software as a Service businesses that enable remote working, performance of business operations, distance learning, media services, and digital health offerings, or required for technical support crucial for business continuity and conductivity."

Other Community, Education, or Government-Based Operations and Essential Functions

• Clarified that "workers to ensure continuity of building functions" include such things as "security and environmental controls (e.g., HVAC), manufacturing and distribution of the products required for these functions…."
• The real estate lawyers will be happy to know that the list now includes "Staff and government offices who perform title search, notary, and recording services in support of mortgage and real estate services and transactions."

Critical Manufacturing

• Broadened definitions tied to the manufacturing of products necessary for other essential businesses including, of course, medical supply.
• The amended regulations recognize as essential "workers needed to maintain the continuity of these manufacturing functions and associated supply chains, and workers necessary to maintain a manufacturing operation in warm standby."
• The FAQs also note different kinds of manufacturing operations are specifically referenced under the other categories of essential services. Accordingly, there are multiple places one can look for support your manufacturing business, or your business essential to an essential manufacturing business, could be allowed to continue bricks and mortar operations for those essential services.
• "Workers who produce or manufacture parts or equipment that supports continued operations for any essential services and increase in remote workforce (including computing and communication devices, semiconductors, and equipment such as security tools for Security Operations Centers (SOC's) or data centers)."

Hazardous Materials.

• If you manage hazardous materials associated with any otherwise essential activity, your workers can continue to do that.

Financial Services

• Most of these changes expand existing categories although there now is a new category of “workers who are needed to maintain orderly market operations to ensure the continuity of financial transactions and services.”
• The amended regulations also add as essential workers who “support[] production and distribution of debit and credit cards [and] provid[e] electronic point of sale support personnel for essential businesses and workers.”
• Still nothing that expressly allows employees to enter offices to keep the payroll flowing pay vendors.

Chemical

• Still a broad list of businesses, necessary supply chain businesses, and logistics workers.

Defense Industrial Base

• If your workers “support the essential services required to meet national security commitments to the federal government and U.S. Military” or you or your subcontractors “perform under contract or sub-contract to the Department of Defense”, your business and workers are considered to be essential.

Commercial Facilities (new category)

• Pretty broad definition of “workers who support the supply chain of building materials from production through application/installation…."
• "Workers supporting e-commerce through distribution, warehouse, call center facilities, and other essential operational support functions" are considered essential.
• "Workers in hardware and building material stores, consumer electronics, technology, and appliances retail, and related merchant wholesalers and distributors – with reduced staff to ensure continued operations" are considered essential.
• “Workers distributing, servicing, repairing, installing residential and commercial HVAC systems, boilers, furnaces, and other heating, cooling, refrigeration, and ventilation equipment" are considered essential.

Residential and Shelter Facilities and Services (new category?

• Principally focused on workers who perform necessary services to shelter at-risk or needy persons.

Hygiene Products and Services

• A quirky set of definitions that includes "laundromats, laundry services, and drycleaners" and "workers providing personal and household goods repair and maintenance", among other things.

Construction-Related Activities (new but in significant part  covered previously)

• The amended regulations include a broad definition of persons who provide services "that are necessary to maintaining the safety, sanitation, and essential operation of residences, businesses, and buildings such as hospitals, healthcare facilities, senior living facilities, and any temporary construction required to support COVID-19 response."
• Anyone who supports "critical or strategic infrastructure", which includes a laundry list of facilities.
• "Workers performing housing construction-related activities, including construction of mixed-use projects that include housing, to ensure additional units can be made available to combat the Commonwealth's existing housing supply shortage."
• The longest explanation in the FAQs appears under this category. “Is construction work considered essential?  It depends. Construction generally is allowed to continue if it is essential infrastructure or is related to essential products, services and supply chain in COVID-19 relief efforts. Work may also proceed if it is needed for the operation or maintenance of an existing building, is expressly permitted within the exemption for a specific essential industry, or involves the production of or involves the production of new housing units.”