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Governor of Massachusetts Orders Closure of All Non-Essential Businesses: What Office Landlords Should Know

Massachusetts’ Response to COVID-19

On March 23, 2020, Governor Charlie Baker of Massachusetts issued COVID-19 Order No. 13 (the “Order”) requiring all businesses and organizations in the Commonwealth of Massachusetts that do not provide “COVID-19 Essential Services” (“Essential Services”) to close their physical workplaces and facilities to workers, customers and the public as of 12:00 noon on Tuesday, March 24, 2020 until 12:00 noon on April 7, 2020.  Businesses that do not provide Essential Services are encouraged to continue their operations on a remote basis such that workers, customers and the public do not enter their brick-and-mortar establishments.  The Order also prohibits gatherings of more than 10 people within any confined indoor or outdoor space (except for parking lots, parks or athletic fields).  Violations of the Order shall be punishable by criminal penalties or by a civil fine of up to $300 per violation.

Essential Services 

Essential Services are described in Exhibit A to the Order.  Any businesses that provide Essential Services do not need to take any further action in order to continue operating their businesses.   There will be no designation or certification from the Commonwealth stating that a specific company is providing Essential Services.  Further, these businesses are still strongly advised to follow social distancing protocols for workers in accordance with forthcoming guidance from the Department of Public Health (“DPH”).

The Order explicitly states that restaurants, bars, and other retail establishments that provide food and beverages to the public are Essential Services and shall continue to offer food and beverages for take-out and delivery as long as they follow DPH’s guidance on social distancing.  

If the function of your business is not listed as an Essential Service, but you believe that it is essential or that it provides essential services or functions, you may formally request designation as “essential” under the Order here.  Business should only do so if they are not already covered by the COVID-19 Essential Services guidance.  

Key Takeaways for Landlords

Our conclusion is that landlords should be able to continue providing basic security, janitorial service, and other services truly needed for maintaining and operating their buildings.  In addition, landlords and tenants should be able to maintain the IT infrastructure needed for remote work provided that they are doing so in a manner that otherwise comports with the Order.  Further, financial services are an Essential Service under the Order, so both tenants and landlords should be able to make payments provided by their leases and process payroll.   

Relevant sections from the statewide guidelines for Essential Services are below.  The communications, IT and financial services sections have been copied wholesale from the guidelines, but with the most important exceptions for office users bolded.

Mintz will continue to monitor and analyze the rapidly changing legal landscape.  


COMMUNICATIONS AND INFORMATION TECHNOLOGY

Communications:
•    Maintenance of communications infrastructure- including privately owned and maintained communication systems- supported by technicians, operators, call-centers, wireline and wireless providers, cable service providers, satellite operations, undersea cable landing stations, Internet Exchange Points, and manufacturers and distributors of communications equipment
•    Workers who support radio, television, and media service, including, but not limited to front line news reporters, studio, and technicians for newsgathering and reporting
•    Workers at Independent System Operators and Regional Transmission Organizations, and Network Operations staff, engineers and/or technicians to manage the network or operate facilities
•    Engineers, technicians and associated personnel responsible for infrastructure construction and restoration, including contractors for construction and engineering of fiber optic cables
•    Installation, maintenance and repair technicians that establish, support or repair service as needed
•    Central office personnel to maintain and operate central office, data centers, and other network office facilities
•    Customer service and support staff, including managed and professional services as well as remote providers of support to transitioning employees to set up and maintain home offices, who interface with customers to manage or support service environments and security issues, including payroll, billing, fraud, and troubleshooting

•    Dispatchers involved with service repair and restoration

Information Technology
•    Workers who support command centers, including, but not limited to Network Operations Command Center, Broadcast Operations Control Center and Security Operations Command Center
•    Data center operators, including system administrators, HVAC & electrical engineers, security personnel, IT managers, data transfer solutions engineers, software and hardware engineers, and database administrators
•    Client service centers, field engineers, and other technicians supporting critical infrastructure, as well as manufacturers and supply chain vendors that provide hardware and software, and information technology equipment (to include microelectronics and semiconductors) for critical infrastructure
•    Workers responding to cyber incidents involving critical infrastructure, including medical facilities, SLIT governments and federal facilities, energy and utilities, and banks and financial institutions, and other critical infrastructure categories and personnel
•    Workers supporting the provision of essential global, national and local infrastructure for computing services (incl. cloud computing services), business infrastructure, web-based services, and critical manufacturing
•    Workers supporting communications systems and information technology used by law enforcement, public safety, medical, energy and other critical industries
•    Support required for continuity of services, including janitorial/cleaning personnel

FINANCIAL SERVICES

•    Workers who are needed to process and maintain systems for processing financial transactions and services (e.g., payment, clearing, and settlement; wholesale funding; services; and capital markets activities)
•    Workers who are needed to provide consumer access to banking and lending services, including ATMs, and to move currency and payments (e.g., armored cash carriers)
•    Workers who support financial operations, such as those staffing data and security operations centers

OTHER ESSENTIAL SERVICES

•    Workers to ensure continuity of building functions, including local and state inspectors and administrative support of inspection services who are responsible for the inspection of elevators, escalators, lifts, buildings, plumbing and gas fitting, electrical work, and other safety related professional work
•    Security staff to maintain building access control and physical security measures
•    Workers at operations centers necessary to maintain other essential functions
•    Construction Workers who support the construction, operation, inspection, and maintenance of construction sites and construction projects (including housing construction)
•    Professional services (such as legal and accounting services) and payroll and employee benefit services, when necessary to assist in compliance with legally mandated activities and critical sector services or where failure to provide such services during the time of the order would result in significant prejudice
•    Workers such as plumbers, electricians, exterminators, inspectors and other service providers who provide services that are necessary to maintaining the safety, sanitation, and essential operation of residences, construction sites and projects, and needed facilities
 

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Authors

Chelsea A. Wood

Associate

Chelsea A. Wood is a Mintz attorney focused on transactional commercial real estate law. She regularly drafts closing documents and leases, negotiates purchase and sale agreements, and performs due diligence related to acquisitions, dispositions, and financings.

Jennifer M. Kiely

Member / Chair, Real Estate Practice

Jennifer M. Kiely is Co-chair of Mintz's Real Estate Practice. She handles acquisitions, dispositions, and financings of office, industrial, and multifamily properties across the US. Jennifer represents real estate funds and other real estate entities as sellers and buyers.
Kelly is a skilled litigator that advises clients on a broad range of disputes involving commercial real estate and government regulation. He has extensive experience litigating complex lease disputes, commercial evictions, permits/zoning appeals, tax abatements, property valuations, government investigations, and administrative proceedings before state and federal agencies.