May 4, 2020

Gov. Baker Updates “Essential Services” Guidance, Allow for Remote Fulfillment in Closed Stores and Warehouses 


Today, the Baker Administration released changes to the COVID-19 Essential Services guidance, loosening restrictions on previously closed, “non-essential” stores and facilities.  Under the updated COVID-19 Essential Services FAQs, a limited number of employees will be allowed back into closed stores and warehouses to fulfill and ship remote orders taken over the phone and online.  The new guidance takes immediate effect.    
RAM had repeatedly lobbied the Baker Administration for relief and clarity on the “Essential Services” list and related FAQs, and was the first group to appear before and communicate with the recently appointed MA Economic Recovery Advisory Board (ERAB), testifying before the panel via Zoom on Wednesday April 29th.  RAM presented a plan for the gradual, phased reopening of the retail industry in the Commonwealth, facilitated by some of the familiar additional protections and safety protocols now in place at “essential” businesses.  However, we did also highlight the immediate need to address the issue of allowing for fulfillment of remote orders from closed retail establishments and warehouse facilities. 

The updated FAQs document spells out specific remote fulfillment guidelines for facilities to follow, including:

  • Facilities must be closed to the public, fulfillment of remote sales/orders only
  • Depending on the square footage of the facility, a maximum of 3,5, or 7 employees are allowed in at anytime
  • Operating hours must allow for sufficient ongoing off-hour sanitation/cleaning
  • All employees must wear face coverings and maintain 6’ social distancing
  • Any deliveries made by employees must be ‘no-contact’ deliveries
  • Employers must stagger shift start/stop times and breaks/lunchtimes  
  • MORE specific requirements are included, ALL MEMBERS INTERESTED IN REMOTE FULFILLMENT should carefully review the updated FAQs

The updated guidance still does NOT allow for curbside pickup or “appointment only” services. 

Also, another change of note to the FAQs can be found in the handling of auto dealerships, who will now be allowed to open for sales, in a limited manner and if following the guidelines for remote fulfillment. 
The extended Emergency Order requiring the closure of certain businesses and prohibiting gatherings of more than 10 people remains in effect until May 18th.  Lt. Governor Karyn Polito stressed that May 18th is now just the due date for the ERAB’s report.  Any reopening plan that the ERAB proposes is expected to take a gradual, phased-in approach over a period of months. 


 State Issues Small Business Tenant Forms to Provide Notice of Inability to Pay Rent


Governor Baker recently signed a bill establishing a moratorium on non-essential evictions and residential foreclosures. This law provides temporary protections for both residential tenants and small businesses that are unable to pay rent during the COVID-19 crisis.  While the bill does not relieve a residential or commercial tenant of their responsibility to pay their rent or mortgage, it does offer protection for those who are unable to make these payments as result of the economic hardships caused by the COVID-19 crisis.
Under the law, a landlord cannot file a complaint in court to evict an eligible small business for a non-essential purpose (i.e. a purpose that does not pose a health or safety risk).  Eligible small businesses are businesses which operate only in MA, have 150 or fewer employees, and are not publicly traded.  The moratorium will last for either four months following the bill’s signing on April 20, 2020, or until 45 days after the emergency declaration expires.
The new law does not eliminate or reduce an obligation to pay rent.  Eligible small businesses can use the “Form of Notice – COVID-19 Hardship – Small Business Tenant and the Documentation of Financial Hardship – Small Business Tenant” forms to provide the required notice to their landlord of their inability to pay rent. 

The forms and Emergency Regulations are available here.

Treasury PPP Guidance on Forgiveness for Laid Off Employees

The United States Treasury recently issued updated Frequently Asked Questions which provide further guidance on loan forgivability under the Paycheck Protection Program.  The loan forgiveness provisions of the PPP allow for the amount of the loan eligible for forgiveness to be reduced based on reductions the borrower makes to its employee count and salary levels. The new guidance indicates the adoption of an interim rule which excludes laid-off employees whom the borrower offered to rehire (for the same salary/wages and same number of hours) from the CARES Act’s loan forgiveness reduction calculation.  The interim final rule specifies that, to qualify for this exception, the borrower must have made a good faith, written offer of rehire, and the employee’s rejection of that offer must be documented by the borrower. Employees and employers should be aware that employees who reject offers of re-employment may forfeit eligibility for continued unemployment compensation.  This guidance may be found as question 40 in the link above.
RAM members taking advantage of PPP loans are reminded that they will be required to certify all expenditures sought to be forgiven. RAM urges such members to maintain detailed records needed to prove eligibility for forgiveness.  

Employer Unemployment FAQ: COVID-19


The Department of Unemployment Assistance has issued updated guidance regarding the Unemployment Insurance program.  The frequently asked questions explain the recent changes at DUA and clarify some other questions employers may have regarding DUA during this difficult time.

Please be sure to give your employees information regarding applying for unemployment benefits as is required by law.


OSHA Guidance for Restaurants & Beverage Vendors Offering Takeout or Curbside Pickup

On Friday, OSHA issued an alert with safety tips for restaurant, food and beverage businesses providing curbside pickup and takeout service. The recommendations can be found here.

Thank you.