United States: Massachusetts Updates COVID-19 Guidance For Non-Essential Retailers During First Reopening Phase

Seyfarth Synopsis:  As Massachusetts enters the first phase of reopening, the Massachusetts Office of Housing and Economic Development has provided updated guidance for retail businesses which sell non-essential goods.  Most notably, the new guidance provides rules for curbside pickup beginning on May 25 and no longer limits the maximum number of employees allowed to work on the employer's premises for online and telephonic order fulfillment.

Last Monday, Governor Baker announced a statewide plan to reopen Massachusetts businesses over the course of four phases.  As Massachusetts enters the first phase of reopening, certain non-essential businesses are permitted to resume operations as of May 25, subject to state guidance.  On May 24, the Executive Office of Housing and Economic Development offered updated guidance applicable to businesses offering remote fulfillment. The updated guidance is applicable to non-essential retailers, non-essential e-commerce companies, and non-essential distribution centers.

First, the updated guidance makes clear that non-essential businesses offering remote fulfillment or curbside pickup must adopt and maintain certain specific COVID-19 workplace safety rules.  These workplace safety rules include:

• Adopting operating hours that allow for sufficient ongoing off-hour sanitation/cleaning;
• Requiring employees to wear face coverings while on-site;
• Maintaining six feet of social distancing between employees, customers, and vendors;
• Ensuring deliveries made by employees are "no-contact" deliveries;
• Staggering employee shifts and breaks to minimize contact;
• Supplying readily accessible hand sanitizer and hand washing facilities for employee use;
• Cleaning employee workspaces frequently;
• Requiring employees to self-administer temperature checks prior to beginning each shift and prohibiting employees with fevers in excess of 100 degrees from reporting to work; and
• Prohibiting employees subject to quarantine due to exposure to COVID-19 like symptoms from reporting to work for 14 days from the date of exposure.

The guidance states that employers out of compliance with these rules may be ordered to close immediately.  In addition, non-essential businesses must adopt all generally applicable COVID-19 workplace safety measures for reopening.  A full list of the generally applicable safety rules are available here.

Second, non-essential retailers may offer curbside pickup provided that they comply with the following rules:

• Items are paid for in advance.
• There is no physical interaction between employees and customers and pickup is completed by the customer without employee assistance. Employees are permitted to provide limited assistance to customers with disabilities.
• Pickup times are staggered to avoid customer interaction.

In addition, adult-use marijuana retailers must comply with the Cannabis Control Commission's guidance for curbside pickup.

Third, the updated guidance eliminates limits on the maximum number of employees permitted on the employer's premises for purposes of remote order fulfillment.  Previously, non-essential retail businesses were only allowed to have 7 or fewer employees on site at any given time, depending on the square footage of the store or distribution center.  The updated guidance no longer places hard limits on the maximum number of employees allowed to return to work.  Rather, staffing levels should be limited to the employees necessary to fulfill delivery or curbside pickup orders, and employees must remain six feet apart.

We will continue to keep you apprised of any developments.  Please reach out to any of the authors or your Seyfarth attorney for further information.