COVID-19: Quick State by State Reference Tool Regarding Non-Essential Business Restrictions in New England States

Last updated May 1, 2020

We are no longer updating the information in this alert.  For more recent guidance, please see our new state-by-state reference tool on reopening plans in New England.

In response to the COVID-19 pandemic and its threat to public health from in-person contact, as well as the significant impact on financial markets, nearly every state, including every state in New England, has issued orders limiting business operations (closure orders, stay-at-home orders, or shelter-in-place orders). Although the orders currently in place vary by state, the governors of Connecticut, Massachusetts, and Rhode Island will be part of a multi-state regional council, along with New York, New Jersey, and Delaware, to coordinate reopening businesses in the region.

Except for Rhode Island, all of the orders across New England reflect federal guidance issued by the Department of Homeland Security’s Cybersecurity & Infrastructure Security Agency (CISA), regarding which business sectors constitute the “critical infrastructure” and therefore should remain open. While each of the states has adopted the CISA sectors as the basis for which businesses may continue in-person operations, each state also has separate variances from the core businesses CISA has identified.

The CISA sectors that may continue in-person operations fall into 14 categories:

  • Health care/public health
  • Law enforcement, public safety, and first responders
  • Food and agriculture
  • Energy
  • Water and wastewater
  • Transportation and logistics
  • Public works
  • Communications and information technology
  • Community and government operations
  • Critical manufacturing
  • Hazardous materials
  • Financial services
  • Chemical
  • Defense industrial base

“Critical manufacturing,” the broadest category, is limited to the manufacture of products needed for the other sectors – health care, transportation, energy, communications, food, chemical manufacturing, nuclear facilities, the operation of dams, water and wastewater treatment, emergency services, and defense. CISA guidance also allows construction to continue, but only construction of critical infrastructure (meaning facilities supporting the other key sectors, such as hospitals or power stations). Click here for the full CISA guidance.

In all the New England states, in-person businesses that remain open must implement the U.S. Centers for Disease Control (CDC) and state-level counterparts’ guidelines for workplaces, including social distancing, regularly cleaning and sanitizing, hand washing protocols, and ensuring sick employees stay home. Click here for the CDC guidance. Separate CDC guidance for healthcare settings is available here.

While the broad categories are the same, each state has implemented the closure order a bit differently, particularly regarding supply chains for exempted businesses, and each has different enforcement. The specifics for each state are detailed below.

 

ME

VT

NH

MA

RI

CT

Effective date

March 25

March 25

March 28

March 24

March 23

March 23

End date

May 31†

May 15†

May 4

May 18

May 8

May 20

Phased re-openings

May 1

(Phase I)

April 27 (Phase II)

n/a

Plan due May 18

n/a

n/a

Movement restrictions?

Remain at home except for essential reasons

Remain at home except for essential reasons

Remain at home except for essential reasons

Remain at home except for essential reasons

Remain at home except for essential reasons

None

Cross-border travel restrictions˚

 

14-day self-quarantine except essential workers

14-day self-quarantine except essential workers

None

14-day self-quarantine except essential workers

14-day self-quarantine except public health and safety workers

Residents strongly encouraged to avoid out-of-state travel

Organizations covered

Public-facing businesses

All

All

All businesses with physical workplaces

All retail

All

Staff exemptions for non-essential businesses?

Yes (for minimal operations and deliveries to customers)

Yes

No

No

Yes (for receiving and servicing new orders and shipments)

Yes (for remote ordering and security or maintenance)

Supply chain exempted?

Unspecified

No

Yes

No

No

Yes

Manufacturing exception?

Yes

No
(must be on list)

Yes

No
(critical manufacturing only)

n/a

Yes

Construction exemption?

Critical infrastructure only

Critical infrastructure only

Critical infrastructure only

Yes (with restrictions)

n/a

Yes

Can a designation be requested?

Yes

No*

Yes

Yes

Yes

Yes

Enforcement

Misdemeanor and fine; police may arrest violators

Police have authority to close non-compliant businesses

Police and Division of Public Health have enforcement authority

Department of Public Health with police assistance if necessary

Police and national guard for travel restrictions; Department of Health

Not specified

† See below for overview of phased re-openings.

*Vermont guidance says that businesses may seek clarifications, but that no requests for additional exemptions would be granted.
Per advisory by the Department of Public Health, not Executive Order.

˚ A more detailed discussion of cross-border travel restrictions is available here.

Maine:

Under Executive Order 19, “Order Regarding Essential Businesses and Operations,” issued on March 24, 2020, Governor Janet Mills ordered all businesses to make their best efforts to implement social distancing requirements in and around their facilities, including six-foot spacing, making hand sanitizer and sanitizing products available, operating hours for elderly and vulnerable customers, and posting online whether a facility is open. Unlike the other orders in New England, however, Governor Mills’ order only instructs non-essential businesses that are public-facing to close. Under the order, “public facing” means businesses that require customer, vendor, or other in-person contact or are at sites that require more than ten workers to convene in a space where social distancing is not possible.

Essential businesses that remain open, with social distancing in effect, include all businesses identified in the CISA guidance. In addition, the Maine order expressly exempts fishing and aquaculture, industrial manufacturing (which is broader than critical manufacturing), steam power, construction and maintenance of essential infrastructure, forest products, essential home repair, auto repair, and hardware stores, among other businesses. Click here for Maine’s Essential Business Operations Definitions, updated April 3, 2020.

On March 31, a supplemental order, Executive Order 28 instructed Mainers to remain at home except for essential activities, which includes outdoor exercise activities if compliant with social distancing. Notably, the order permits employees of non-essential business to engage in minimal operations for the business and for the purpose of delivering goods. The order also prohibits the use of public transportation unless absolutely necessary and limits passengers in private vehicles to members of the same household unless it is for essential activities. The order also specifies additional restrictions for retail establishments to ensure social distancing. Our detailed discussion of this order can be found here.

On April 29, Order 49 extended the state’s stay at home order through May 31 and incorporated by reference Governor Mill’s Restarting Plan. The Restarting Plan has four phases, with Stage 1 to begin on May 1. Phase 1 continues to prohibit gatherings of more than 10 people, calls for people to continue working from home if they are able to do so, and keeps in place the 14-day quarantine for non-essential travel into Maine. It also requires construction firms to deploy additional PPE and other safety measures on job sites, and mandates that people wear face masks in public settings where physical distancing is difficult to maintain. With appropriate safety precautions, the following businesses will be allowed to open:

  • Health care services from Maine-licensed providers
  • Personal services, such as barber shops, hair salons, and pet grooming
  • Limited drive-in, stay-in-your vehicle, religious services
  • Drive-in movie theaters
  • Outdoor recreation, such as guided outdoor activities (hunting & fishing) and restricted use of golf and disc golf courses
  • State parks, state-owned public land trails, and historic sites; however, certain coastal state parks will remain closed
  • Auto dealerships and car washes.

An overview of the plan can be accessed here, and our alert can be found here.

The March 24 order specified that violations can be enforced by the police and would be a misdemeanor that could result in up to six months in prison and a fine.  Police are empowered to arrest violators. The order also extended Governor Mills’ March 18 order restricting gatherings of more than 10 people and closure of restaurants and bars to on-site services. Note that Governor Mill’s April 14, 2020 proclamation extending Maine’s state of emergency through May 15, 2020 does not change the expiration dates of EO19 or EO28, both of which are still set to expire on April 30, 2020. 

Vermont:

Governor Philip Scott issued the “Stay Home, Stay Safe” order on March 24, 2020, which took effect on March 25 at 5pm. The order requires all businesses and nonprofits to close in-person operations unless specifically excepted, and directs all individuals to remain at home except for essential purposes such as personal safety, securing food or medicine, medical care, exercise, and care of others. On March 30, Vermont ordered anyone coming from outside the state, unless for essential purposes, to self-quarantine for 14 days and instructed police to monitor compliance by lodging providers, empowering the Attorney General to “take such steps as he deems necessary” to ensure compliance.

On April 17, 2020, Governor Scott issued Addendum 10 to his state-wide emergency declaration providing for a phased approach to reopening Vermont’s economy and requiring that all businesses that are or will be operating during the state of emergency implement physical distancing and health and sanitation measures in accordance with state and CDC guidelines. This includes requiring that all employees wear non-medical cloth case coverings when in the presence of others and prohibits more than 2 people from occupying the same vehicle when conducting work. Phase 1, effective April 20, 2020 allows micro-crews of up to 2 persons to perform outdoor work and construction work in unoccupied structures, and permits the resumption of services operating with a single worker (such as appraisers, realtors, attorneys, and pet care operators), provided that no more than 2 persons, including the worker, are present. Click here for clarification on Addendum 10 by the Agency of Commerce and Community Development.

Addendum 11, issued on April 24, 2020 announced Phase 2 of the state’s reopening, setting out additional requirements for business and entities operating during the state of emergency. In addition to the requirements in Addendum 10, open businesses must ensure that no employees have a temperature or symptoms of respiratory illness, and any worker with knowledge of contact with a worker diagnosed with COVID-19 will be permitted on site until the completion of a 14-day quarantine. Addendum 11 prohibits congregating of employees, requires proper air circulation for indoor workspaces where more than 2 employees are working, and mandates that businesses designate a health officer on site at every shift to be responsible for ensuring compliance with Addendum 10 and Addendum 11. Critically, this designated officer will have the authority to stop or modify activities to ensure compliance with these requirements. Finally, all employees (except for healthcare workers and those already trained in infection control) must undergo training on health and safety requirements provided by the Vermont Occupational Safety and Health Agency (VOSHA), completion of which must be documented by the employer.

Addendum 11 expands the allowable number to 5 persons per job site or location for outdoor and construction work, manufacturing, and distribution operations if social distancing can be maintained. Supporting operations may continue with the minimum number of employees necessary, and libraries may allow for curbside pickup. Notably, Phase 2 allows for the resumption of in-person shopping at outdoor retail operations, such as garden centers, provided that the businesses do not permit more than 10 people at any time, including customers and staff. Farmers markets may also open with limited in-person operations provided they also adhere to any applicable local ordinances and regulations and take steps to reduce contact between vendors and customers, using a “pre-order, local pick-up” model to the extent possible.

Vermont has the narrowest list in New England of exceptions for businesses that can remain open. Unlike other states, Governor Scott did not broaden the restrictions on “critical manufacturing” to include other industries and did not say that suppliers to excepted retailers were automatically allowed to remain open; rather, each business must itself qualify under the order.

Vermont provided additional guidance on which businesses can remain open based on the NACIS codes of the products it produces. These businesses are limited to those either directly involved in, or directly supporting, critical infrastructure areas of health, public safety, utilities, telecommunications, transportation, fuel, building repairs necessary for safety and sanitation, trash collection and disposal, mail and shipping, news media, banks and related financial institutions, services to the disadvantaged, and national security. [SR1] 

Businesses that believe they are supporting critical infrastructure but are not included in the exempted NACIS codes or elsewhere in the order can request permission to continue to operate via a form, but Vermont has emphasized that the process is intended for clarification and they will not be granting exceptions outside of the Executive Order.

The order gives the police enforcement authority, but expressly emphasizes that the police should bring violators into compliance and discourages arrests. Per Addendum 10 the orders above are now in effect until May 15, 2020.

New Hampshire:

On March 27, 2020, New Hampshire was the last state in New England to issue a closure order with Emergency Order #17, which required all businesses not identified as providing “essential services” to close their physical workspaces to facilities, workers, customers, and the public, and cease all in-person operations.

Rather than identify sectors, New Hampshire issued a list of “essential services.” The essential services largely track the CISA sectors, but also specifically include workers in the seafood and fishing industries, commercial and residential landscaping services (including golf courses), company cafeterias, and blood donors. It also exempts businesses in the supply chains of other essential services. Although the manufacturing exemption only expressly mentions manufacturing in support of critical services, the state’s Department of Business and Economic Affairs clarified that it is the intent to designate all manufacturing as essential under the order. Governor Christopher Sununu’s order noted expressly that more businesses may be added to the list. Businesses that believe they are providing essential services not on the list can request designation as an essential business via email to essential@nheconomy.com, including a brief justification and contact information.

On April 21, 2020, Governor Chris Sununu announced the creation of a task force to decide when and how to reopen the state’s economy. The Governor explained that the new task force would create guidance documents for use by business and organizations, and that it would follow some of the federal guidelines for phased re-opening, with tailoring to address “the unique landscape and geography of New Hampshire.” The task force will approach each industry by NAICs codes, which will allow similarly situated industries to phase forward together. 

As with Vermont, those businesses that are designated essential must follow the social distancing protocols issued by the CDC and the New Hampshire Division of Public Health. In addition, the state’s orders require individuals to remain at home except for specific reasons, such as exercise, essential errands, such as getting food and fuel or doing laundry, visiting a family member or caring for another person, receiving deliveries, medical care, and work for an exempted business. The order also uniquely includes “outdoor recreation” as a permissible reason to leave the home.

Both the police and the Department of Public Health have the ability to enforce the order. The New Hampshire order has the longest sunset and is in effect until May 4, 2020.

Massachusetts:

Governor Charlie Baker issued the Order Assuring Continued Operation of Essential Services on March 23, 2020, ordering all businesses with “brick and mortar” premises to close unless they are designated as essential services. The order expressly encourages all non-essential businesses to continue to operate if they are able to do so through remote means. It also expressly exempts places of worship, provided they limit indoor gatherings to ten people. On March 31, 2020, Order No. 21 extended closures of all businesses and other organizations not providing COVID-19 essential services through May 4, 2020. On April 28, Order No. 30 extended closures and restrictions on gatherings of more than ten people through May 18, 2020. The Department of Public Health’s stay at home advisory also remains in effect. This announcement came on the heels of the Governor’s closure of public schools through the end of the school year, and of most childcare programs through June 29. The Essential Services list, updated with the March 31 order remains current and in effect. Our detailed discussion of the April 28 order can be found here.

Also on April 28 Governor Baker announced the formation of a Reopening Advisory Board. The Board is tasked with developing a plan for a phased re-opening of the economy. The Board will submit a report of its recommendations by May 18, but the Governor has made clear that all recommendations must be based on health and safety metrics and that guidance from health experts will dictate the timeline of the re-opening process.

Massachusetts urges all essential businesses to remain open to workers and customers, if they do so in keeping with the social distancing protocols and guidance. In particular, the Massachusetts order notes that restaurants and bars can remain open as long as the food and beverages are for takeout or delivery only. Governor Baker’s essential services designations, although largely in line with the CISA sectors and updated on March 31 to reflect new federal guidance, notably are broader to include all construction. The supplemental March 31 order may have narrowed the construction exception (see our discussion of this issue here) and on April 2 additional guidance was issued on enforcement of the construction exemption, requiring all projects to have strong safety protocols in place in order to remain open. The order also specifies that medicinal cannabis, but not recreational, is an essential service.

Baker’s order is also different from the other orders in that it describes its purpose as ensuring that essential businesses remain open, rather than to close non-essential businesses in the interest of public health. It appears that this drafting choice may have been deliberate to assist the governor’s office in justifying areas of openings that are broader than other orders and guidance.

Also unusual among the New England orders, is that the Massachusetts order expressly states that it “supersedes and makes inoperative any order or rule issued by a municipality that will or might in any way impede or interfere with the achievement of the objectives of this order,” which are to ensure that the designated businesses remain open.

Businesses not included can request designation as an essential business only if they are not covered by the existing guidance.

Enforcement authority resides with the Department of Public Health with, if necessary, “the assistance of State or municipal police.”

Rhode Island: 

Rhode Island initially issued the most limited order, focusing only on closing specific high-risk businesses. The March 22 order instructed all recreational, entertainment, and “close-contact” businesses (meaning businesses where social distancing is not possible) to close. Guidelines in furtherance of this order are available here.

On March 28, Governor Gina Raimando supplemented and broadened the closure order with a “Stay at Home” order requiring the closure of all non-critical retail businesses as of March 30. Critical retail is defined as retail in support of food, medicine, communications and shipping, equipment and hardware stores, funeral homes, and financial institutions including pawn shops and payday lenders. A list of critical (and noncritical) businesses and further guidance is available here. As in many other states, restaurants can only operate for pickup, drive-through, or delivery. The order also includes firearms stores as a critical retail business. All businesses are required to maintain CDC social distancing guidelines for hygiene and regular disinfecting, require sick employees to remain home, and must post notices of those requirements. Effective April 18, Executive Order 20-24 requires employees of all customer or client-facing businesses and organizations still in operation to wear cloth face coverings unless an employee can “easily, continuously, and measurably” maintain at least six feet of distance from other employees or unless doing so would damage the employee's health, and businesses must make available masks for use by their employees. Customer-facing businesses must also take steps to require customers to wear face coverings, including the posting of such a requirement at the entrance of the business. This order is in effect until May 18.

Businesses that remain open must also require all personnel who can work from home to do so. Governor Raimondo also issued more specific guidelines for large retailers, including limiting capacity and marking social distancing spacing, and not permitting non-critical retail for stores that sell both critical and non-critical goods (although online orders and shipping may continue for all retail sales). The Department of Business Regulation is empowered to identify other businesses as critical.

The March 28 order also requires residents to remain at home except traveling for work, medical treatment, or to obtain necessities, as well as to exercise. All travelers coming into Rhode Island from another state for a non-work purpose are also required to self-quarantine for 14 days, a controversial part of the order. Notably, this order repeals EO20-12 and specifically exempts public health, public safety, and healthcare workers from the self-quarantine requirement. A further quarantine order was issued on April 9.

The order can be enforced by the Rhode Island Department of Health and was originally in effect until March 30, 2020.  On April 10, Executive Order 20-23 extended the above orders to May 8.

As of April 17, the state’s Department of Environmental Management enacted a new no-cost Direct Sale Dealer License, which authorizes commercial fishermen in Rhode Island to sell certain species of finfish, and to sell and transport for sale live lobsters and crabs, directly to consumers and licensed seafood retailers from the vessel on which they were harvested. The license is available to resident commercial fishermen licensed to harvest finfish and/or crustaceans, but will be valid and effective only for the duration of the emergency regulation. The full regulation is available here.

Governor Raimondo announced a three-phased “Reopen RI” framework on April 27, although no dates for its commencement have been released. In the first phase, the stay at home order is lifted, but social gatherings are limited to 10 people. Older adults (65+) and those with underlying health conditions can go to work and go out for food or medicine, but vulnerable individuals will still be strongly encouraged to otherwise stay home. Masks, vigilant hand-washing and increased cleaning will remain in place. Everyone who can work from home should still work from home. All activities must account for strong social distancing guidelines of remaining 6-feet apart.

At a press conference on April 29, Governor Raimondo made clear that it was highly unlikely that groups of more than 50 people would be able to gather at any point this summer and recommended that any such scheduled events be cancelled, postponed, or celebrated virtually. Other key messages included the reminder for everyone to wear a face cloth covering while in public, to avoid gathering in groups of more than 5 people, and to stay home except for essential reasons.

Connecticut:

In his March 20, 2020 “Stay Safe, Stay Home” order, the first in New England, Governor Ned Lamont incorporated the CISA guidance by reference in defining essential businesses, but specified that essential businesses could be broader than those identified in the CISA guidance.

In addition to those sectors, the order specifically included “big-box” stores and wholesale clubs (provided that they also sell groceries), hardware stores, and pet and pet supply stores. It also specified that liquor/package stores and manufacturer permitees could remain open. The broadest deviation from the CISA sectors is that the Connecticut order also exempts all manufacturing and corresponding supply chains, as well as all construction, both commercial and residential. Businesses that remain open are required to maintain CDC social distancing protocols. All other businesses were ordered to reduce workforces at any workplace locations by 100%. The order allows businesses to request designation as an essential business from the Department of Economic and Community Development, provided they are not covered by existing guidance.

The order was subsequently amended to allow non-essential retailers to sell on site, provided they only offer remote ordering and delivery or curbside pickup and to allow staff or third parties on site to the minimum extent necessary to provide security, maintenance, mail, or other essential services. Connecticut has also issued guidance that any person coming into Connecticut from another state is “strongly urged” to self-quarantine for two weeks.

A March 26 order further restricted business and retail operations, limiting the entrance of customers to any restaurant or eating establishment to the minimum extent necessary to pick up and/or pay for their orders. It also requires that retail establishments allowed to remain open take reasonable measures to ensure customers maintain six feet of distance between each other, and manage any resulting lines to maintain such distance while people are waiting to enter. The order also limits firearms transactions (which require the customer’s physical presence) to be conducted by appointment only. This order is in effect for the duration of the emergency unless terminated earlier.

An April 1 order instituted mandatory “safe store” rules for all retail establishments operating during the declared state of emergency. This order specifically supersedes the requirements of the March 26 order outlined above, as well as municipal orders. A similar “safe workplaces” order was issued on April 7, applying to all essential businesses. Guidance on rules for essential businesses is available here, and here for essential retailers. An April 2 order clarified that sellers of alcoholic beverages are permitted to deliver directly to consumers.

On April 18, Governor Lamont opened marinas, boatyards, and marine manufacturers for personal usein conjunction with the governors of New York and New Jersey, provided that strict social distancing and sanitation protocols are followed.

As of April 20, Order 7BB mandates that any person in a public place who is unable to or does not maintain a safe social distance of approximately six feet from every other person must cover their mouth and nose with a mask or cloth face-covering. Critically, the order supersedes and preempts any current or future municipal order. The requirement extends to individuals when traveling by taxi, car, or any means of mass transit. The order excepts those for whom wearing a face covering would be contrary to their health, children in a childcare setting or under 2 years old, or any child if the parent or guardian is unable to place the mask safely on the child’s face. Persons not wearing a mask due to a medical condition will not be required to produce medical documentation.

On April 23, Governor Lamont announced a Reopen Connecticut Advisory made up of local health, business, and education experts that will consult with the administration and legislative leadership with respect to reopening of the state’s economy and schools.

While Governor Lamont expressly did not supersede any local orders already in effect, he did order that “no municipal chief executive officer or designee may enact or enforce any order that conflicts with any provision of any of my Executive Orders or an order issued by an executive agency… or issue any shelter-in-place order or other order prohibiting travel” unless they first receive written permission from the Department of Emergency Services.

The initial March 20 order was extended on April 10 to remain in effect through May 20, 2020, with safe store orders in effect through the duration of the state of emergency.

For questions on how these orders affect your business, please contact firm attorneys Kathleen HamannAndrea MakerMark RosenMelanie Conroy, or Steve MacGillivray.

 

 [SR1]Given the detailed language of Phase 2, I think we can remove this part?