Petition for Writ of Certiorari — Dawn Desrosiers, et al., Petitioners v. Charlie Baker, Governor of Massachusetts

Supreme Court briefMay 10, 2021

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APPENDIX

TABLE OF CONTENTS TO APPENDIX

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Appendix A: Opinion Below

Opinion of the Supreme Judicial Court of

Massachusetts (Dec. 10, 2020) ............... 1a-37a

Appendix B: Related Court Order

Order of the Supreme Judicial Court for

Suffolk County (July 2, 2020) ............... 38a-40a

Appendix C: Emergency Declaration

Executive Order 591 (Mar. 10, 2020) ... 41a-42a

Appendix D: Relevant Executive Orders

COVID-19 Order 2 ................................ 43a-44a

COVID-19 Order 3 ................................ 45a-46a

COVID-19 Order 5 ................................ 47a-48a

COVID-19 Order 10 .............................. 49a-51a

COVID-19 Order 13 .............................. 52a-65a

COVID-19 Order 15 .............................. 66a-67a

COVID-19 Order 16 .............................. 68a-69a

COVID-19 Order 21 .............................. 70a-86a

COVID-19 Order 22 .............................. 87a-88a

iia

COVID-19 Order 27 .............................. 89a-90a

COVID-19 Order 28 .............................. 91a-92a

COVID-19 Order 30 .............................. 93a-95a

COVID-19 Order 32 .............................. 96a-97a

COVID-19 Order 33 ............................ 98a-106a

COVID-19 Order 34 .......................... 107a-110a

COVID-19 Order 35 .......................... 111a-118a

COVID-19 Order 36 .......................... 119a-121a

COVID-19 Order 37 .......................... 122a-131a

COVID-19 Order 38 .......................... 132a-135a

COVID-19 Order 40 .......................... 136a-137a

COVID-19 Order 41 .......................... 138a-141a

COVID-19 Order 43 .......................... 142a-150a

COVID-19 Order 44 .......................... 151a-154a

COVID-19 Order 45 .......................... 155a-159a

COVID-19 Order 46 .......................... 160a-164a

COVID-19 Order 48 .......................... 165a-167a

COVID-19 Order 50 .......................... 168a-174a

COVID-19 Order 51 .......................... 175a-181a

COVID-19 Order 52 .......................... 182a-187a

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COVID-19 Order 53 .......................... 188a-193a

COVID-19 Order 54 .......................... 194a-200a

COVID-19 Order 56 .......................... 201a-207a

COVID-19 Order 57 .......................... 208a-213a

COVID-19 Order 58 .......................... 214a-220a

COVID-19 Order 59 .......................... 221a-225a

COVID-19 Order 60 .......................... 226a-228a

COVID-19 Order 62 .......................... 229a-231a

COVID-19 Order 63 .......................... 232a-237a

COVID-19 Order 65 .......................... 238a-243a

COVID-19 Order 66 .......................... 244a-251a

APPENDIX A

SUPREME JUDICIAL COURT OF

MASSACHUSETTS, WORCESTER

DAWN DESROSIERS1 & OTHERS2

THE GOVERNOR

SJC-12983

Argued September 11, 2020

Decided December 10, 2020

Present: Lenk, Gaziano, Lowy, Budd,

Cypher & Kafker, JJ. 3

Civil action commenced in

the Superior Court Department on June 1, 2020.

1 Individually and doing business as Hair 4 You.

Susan Kupelian; Nazareth Kupelian; Naz Kupelian

Salon; Carla Agrippino-Gomes; Terramia, Inc.; Antico Forno,

Inc.; James P. Montoro; Pioneer Valley Baptist Church

Incorporated; Kellie Fallon; Bare Bottom Tanning Salon;

Thomas E. Fallon, individually and doing business as Union

Street Boxing; Robert Walker; Apex Entertainment LLC;

Devens Common Conference Center LLC; Luis Morales; Vida

Real Evangelical Center; Ben Haskell; and Trinity Christian

Academy of Cape Cod.

3 Justice Lenk participated in the deliberation on this

case prior to her retirement.

Following transfer to the Supreme Judicial Court for

the county of Suffolk, pursuant to G. L. c. 211, § 4A,

the case was reported by Lenk, J.

Michael P. DeGrandis, of the District of Columbia, for

the plaintiffs.

Douglas S. Martland, Assistant Attorney General, for

the Governor.

John A. Sten, Boston, for Representative Shawn C.

Dooley, amicus curiae, submitted a brief.

Elissa Flynn-Poppey, Emily Kanstroom Musgrave, &

Andrew Nathanson, Boston, for Massachusetts

Health & Hospital Association & others, amici curiae,

submitted a brief.

CYPHER, J. On March 10, 2020, Governor

Charles D. Baker, Jr., declared a state of emergency in

the Commonwealth of Massachusetts in response to

the pandemic arising from COVID-19, a respiratory

illness caused by a novel coronavirus. See Governor's

Declaration of Emergency, Executive Order No. 591.

He did so under the Civil Defense Act (CDA), St. 1950,

c. 639, and G. L. c. 17, § 2A. At the time of the

emergency declaration, Massachusetts had about one

hundred COVID-19 cases and was facing its first

outbreak. Since the Governor declared the state of

emergency, he has issued numerous COVID-19

emergency orders (emergency orders). The emergency

orders placed restrictions on daily activities, which,

among other things, prohibited gatherings of more

than ten people; suspended in-person instruction at

schools; ordered restaurants and bars to suspend

on-premises service; and required all businesses and

other organizations not providing designated

COVID-19 “essential services”4 to close premises to

workers, customers, and the public. As the public

health data improved, the Governor announced a

phased reopening plan, in which he classified

business and organization types in different

reopening phases. See Order Implementing a Phased

Reopening of Workplaces and Imposing Workplace

Safety Measures to Address COVID-19, COVID-19

Order No. 33 (May 18, 2020).

COVID-19 has taken a devastating toll on the

Commonwealth, the United States, and the world. As

of this writing, in Massachusetts alone, over 250,000

people have been infected and over 10,000 people have

died. During the April 2020 surge in Massachusetts,

the number of infections often exceeded 1,500 per day

and there were more than one hundred deaths per day

from COVID-19 for the majority of the month. In

addition to the medical toll COVID-19 has inflicted, the

personal toll resulting from the virus and containment

measures has been immeasurable. Behind every

infection and every death are those who could not visit

loved ones in the hospital due to visitation restrictions,

or who could not grieve the loss of loved ones with

family and friends in the traditional manner. Family

and friends had to isolate from one another, and

visiting a loved one in another country became

impossible, or nearly so. COVID-19 and the attendant

containment measures have also resulted in high

“Essential services” are those identified by the

government as “essential to promote the public health and

welfare.” See Order Assuring Continued Operation of Essential

Services in the Commonwealth, Closing Certain Workplaces,

and Prohibiting Gatherings of More Than 10 People, COVID-19

Order No. 13 (Mar. 23, 2020) (Order No. 13).

unemployment, economic hardship, and shuttered

businesses.

In June 2020, the plaintiffs5 filed a complaint

in the Superior Court, seeking declaratory judgment

and injunctive relief and challenging the Governor's

declaration of a state of emergency and the emergency

orders as unauthorized and unconstitutional.6 The

parties agreed to defer seeking preliminary injunctive

relief from the Superior Court and jointly petitioned

for transfer of the case from the Superior Court to a

single justice of this court for reservation and report.

The single justice granted the petition, and the case

is now before us.

We conclude that the CDA provides authority

for the Governor's March 10, 2020, declaration of a

state of emergency in response to the COVID-19

pandemic and for the issuance of the subsequent

emergency orders; the emergency orders do not

violate art. 30 of the Massachusetts Declaration of

Rights; and the *372 emergency orders do not violate

the plaintiffs' Federal or State constitutional rights to

procedural and substantive due process or free

assembly.7

5 The plaintiffs are two hair salons, a tanning salon, a

boxing gym, and two restaurants, as well as the respective

owners of those businesses; two houses of worship and their

pastors; the head of a religious academy; a family entertainment

center that offers various indoor attractions; and a conference

center.

6 On June 1, 2020, the plaintiffs commenced their action,

and on June 19, they filed an amended complaint.

7 We acknowledge the amicus briefs submitted by the

Massachusetts Health & Hospital Association, Massachusetts

Medical Society, and Organization of Nurse Leaders; and by

Representative Shawn C. Dooley.

Background. 1. COVID-19. Patients with

COVID-19 may be asymptomatic, may have a mild

respiratory illness, or may develop severe

complications leading to the need for hospitalization,

and even death. The virus spreads primarily from

person to person but can also spread through a person

contacting a surface that has the virus on it and then

touching his or her mouth, nose, or eyes. A person can

be asymptomatic or presymptomatic and still spread

the virus. Medical experts have identified ways in

which the spread of the virus can be curtailed, which

include wearing a cloth face mask, social distancing,8

quarantining when infected or exposed to the virus,

hand washing, and cleaning frequently touched

surfaces. People with certain underlying medical

conditions and older adults are at a higher risk of

developing severe illness from COVID-19. At this

time, there is no cure and effective vaccines have not

yet been distributed.

COVID-19 emerged at around the start of 2020

in China, and within months it spread around the

world. On January 11, 2020, the first known death

caused by COVID-19 was reported in China. Later in

January, a man in the State of Washington became the

first confirmed case in the United States. On January

30, the World Health Organization (WHO) declared “a

public health emergency of international concern,” and

in response to the growing outbreak, the President’s

administration implemented restrictions on travel

8 “Social distancing” refers to keeping at least six feet

apart from people who are not from one's household, in both

indoor and outdoor spaces.

from China.9

On February 29, 2020, the United States

reported that an individual in Washington became

the country's first death from COVID-19.10 On March

11, WHO declared the coronavirus outbreak a

pandemic, and on March 13, the President declared a

national emergency.

2. The Governor’s declaration of a state of

emergency. On March 10, 2020, the Governor declared

a state of emergency, “to protect the health and welfare

of the people of the Commonwealth” and to “facilitate

and expedite the use of Commonwealth resources and

deployment of federal and interstate resources to

protect persons from the impacts of the spread of

COVID-19.” See Executive Order No. 591. He declared

the state of emergency pursuant to the powers

9 Throughout the course of the COVID-19 pandemic, the

United States and other countries implemented various travel

restrictions. See Coronavirus Travel Restrictions, Across the

Globe, N.Y. Times, July 16, 2020 (listing travel restrictions by

country).

10 It later was discovered that other people in the United

States had died earlier from COVID-19.

provided in the CDA11 and in G. L. c. 17, § 2A.12 Id.

The state of emergency was effective immediately and

remained in effect “until notice is given, pursuant to

[the Governor's] judgment, that the state of

emergency no longer exists.” Id.

3. The emergency orders. From early March to

May 2020, the number of COVID-19 infections and

deaths from COVID-19 in the Commonwealth

increased at a grim rate. The Commonwealth faced

outbreaks at long-term care facilities, fear that a surge

would overwhelm hospitals, and uncertainty about the

future.13 Against that backdrop, the Governor issued

11 The Civil Defense Act (CDA), St. 1950, c. 639, provides

that the Governor can declare a state of emergency in specified

circumstances, St. 1950, c. 639, § 5, and provides the Governor

with “all authority over persons and property, necessary or

expedient for meeting said state of emergency, which the general

court in the exercise of its constitutional authority may confer

upon him as supreme executive magistrate of the commonwealth

and commander-in-chief of the military forces thereof,” St. 1950,

c. 639, § 7.

General Laws c. 17, § 2A, provides that upon the

Governor’s declaring “that an emergency exists which is

detrimental to the public health,” the Commissioner of Public

Health may “take such action and incur such liabilities as he [or

she] may deem necessary to assure the maintenance of public

health and prevention of disease” and “may establish procedures

to be followed ... to insure the continuation of essential public

health services and the enforcement of the same.”

13 The COVID-19 pandemic is far from the first public

health crisis the Commonwealth has faced. In 1701, quarantine

legislation aimed at preventing epidemics empowered the

Governor or commander-in-chief, once he was made aware of the

presence of the plague, smallpox, pestilential or malignant fever,

numerous emergency orders, aimed first at efforts to

“flatten the curve,” i.e., to reduce the number of cases

at a given time. Through the emergency orders, the

Governor, among other things, banned large

gatherings;14 suspended all in-person instruction at

public and private elementary and secondary schools

in the Commonwealth;15 banned on-premises

consumption of food or drink at restaurants and bars;

suspended all child care operations but established

emergency child care for certain children; designated

specified service and production sectors as “COVID-19

Essential Services,” which were “urged to continue

operations during the state of emergency,” and ordered

businesses that did not provide essential services to

close their physical workspaces and facilities;16

mandated wearing a face covering when social

distancing was not possible; and mandated a

fourteen-day quarantine for travelers arriving in

Massachusetts, unless traveling from a specified State,

providing a negative COVID-19 test, or otherwise

falling within one of the exceptions. Certain orders

or other contagious sickness, “with the advice and consent of the

council, to take such further order therein as they shall think fit

for preventing the spreading of the infection.” St. 1701-1702, c. 9.

14 He first banned gatherings of more than 250 people,

then reduced that to no more than twenty-five people, and finally

to no more than ten people.

15 Residential and day schools for special needs students

were excluded from this order.

The order contained an exception that places of

worship could remain open subject to the emergency order’s

general limitation on the number of people who could gather.

contained language about the penalties for violations.

For example, violation of Order No. 13, which limited

gatherings to no more than ten people and established

COVID-19 essential services, would result in criminal

penalty under § 8 of the CDA or a civil fine of up to

$300 per violation. Order Assuring Continued

Operation of Essential Services in the Commonwealth,

Closing Certain Workplaces, and Prohibiting

Gatherings of More Than 10 People, COVID-19 Order

No. 13 (Mar. 23, 2020) (Order No. 13).

As the public health data improved, the

Governor began transitioning the emergency orders to

“reopening” the Commonwealth. On May 18, 2020, the

Governor implemented a phased reopening plan. Order

Implementing a Phased Reopening of Workplaces and

Imposing Workplace Safety Measures to Address

COVID-19, COVID-19 Order No. 33. The plan

established phases in which categorized businesses

and organizations could reopen, subject to workplace

safety rules set forth in the plan. Id. Phase one

included businesses that could open first, including

construction, places of worship,17 and firearms retailers

and shooting ranges; and businesses that could open

second, including hair salons and barber shops, general

use offices, and pet groomers. On June 1, the Governor

announced the businesses in phases two, three, and

four, which could reopen when the Governor

authorized it in subsequent orders. Order Clarifying

the Progression of the Commonwealth's Phased

Workplace Reopening Plan and Authorizing Certain

Although places of worship were not subject to a

complete closure in the initial shutdown order, see note 16,

supra, “reopening” in phase one allowed them to operate at

higher capacity.

10a

Re-opening Preparations at Phase II Workplaces,

COVID-19 Order. No. 35. Phase two included retail

stores, restaurants, golf facilities, and day camps.

Phase three businesses included casino gaming floors,

fitness centers and health clubs, museums, and

aquariums. Phase four included amusement parks,

street festivals and parades, and large capacity

venues used for entertainment, group or spectator

sports, business, and cultural events.18 On June 6, the

Governor issued an order that phase two businesses

could reopen in two steps, the first taking place

immediately and including services such as outdoor

table service at restaurants, and the second taking

place subject to a subsequent order and including

services such as indoor dining. See Order Authorizing

the Reopening of Phase II Enterprises, COVID-19

Order No. 37. On July 2, the Governor issued an order

that phase three businesses and organizations could

reopen, again in a two-step process. See Order

Authorizing the Re-opening of Phase III Enterprises,

COVID-19 Order No. 43. Phase four businesses will

not be allowed to open until a COVID-19 vaccine or

treatments are developed.

4. Reservation and report. After the plaintiffs

filed their amended complaint in the Superior Court,

the parties jointly petitioned for transfer to a single

justice of this court for reservation and report. The

single justice ordered the case transferred and reserved

and reported the matter to the full court. The reported

18 The lists for phases three and four noted that they were

subject to amendment, and one such amendment was that arcades

were moved from phase three to phase four, but the Governor

subsequently allowed arcades to open in September 2020.

11a

questions are as follows:

“(1) Whether the [CDA], St. 1950, c. 639,

provides authority for Governor Baker's

declaration of a state of emergency on

March 10, 2020, and issuance of the

emergency orders pursuant to the

emergency declaration and, if so, whether

such orders, or any of them, violate the

separation of powers doctrine reflected in

[art.] 30 of the Massachusetts Declaration

of Rights; and

“(2) Whether the emergency orders

issued by Governor Baker pursuant to

his declaration of a state of emergency

on March 10, 2020, violate plaintiffs'

federal or state constitutional rights to

procedural and substantive due process

or free assembly as alleged by plaintiffs.”

Discussion. 1. The Governor’s authority under

the CDA. The plaintiffs argue that the Governor’s

emergency declaration and emergency orders under

the CDA are unenforceable, ultra vires actions because

the CDA vests the Governor with specified emergency

powers only in the event of “immediate and specific

cataclysmic events of limited duration,” which they

argue the COVID-19 pandemic is not. The plaintiffs

further argue that the Legislature intended the Public

Health Act (PHA), codified, as amended, in G. L. c. 111,

and not the CDA, to be used to protect Massachusetts

residents from “disease dangerous to the public

health,” such as COVID-19. The Governor counters

that the plain language of the CDA gives him broad

12a

authority in the context of the COVID-19 pandemic,

the PHA does not preclude the Governor from acting

under the CDA, and the current Legislature

repeatedly has ratified his reading of the CDA and his

application of the CDA to the COVID-19 pandemic.

We conclude that the CDA provides authority for the

Governor's declaration of a state of emergency in

response to the COVID-19 pandemic and the issuance

of the emergency orders.

In interpreting a statute, we follow the plain

language “when it is unambiguous and when its

application ‘would not lead to an “absurd result,” or

contravene

the

Legislature’s

clear

intent.’”

Commonwealth v. Kelly, 470 Mass. 682, 689 (2015),

quoting Commissioner of Revenue v. Cargill, Inc., 429

Mass. 79, 82 (1999). “The words of a statute are the

main source from which we ascertain legislative

purpose ....” Kelly, supra at 688, quoting Foss v.

Commonwealth, 437 Mass. 584, 586, (2002). “More

specifically, courts construe a statute in accord with

the intent of the Legislature ascertained from all its

words construed by the ordinary and approved usage

of the language, considered in connection with the

cause of its enactment, the mischief or imperfection to

be remedied and the main object to be accomplished,

to the end that the purpose of its framers may be

effectuated” (quotation and citation omitted). Kelly,

supra at 688-689.

a. The CDA. The CDA, entitled “An Act to

provide for the safety of the commonwealth during the

existence of an emergency resulting from disaster or

from hostile action,” provides the Governor with

expansive discretionary powers in the face of a

declared state of emergency, namely, “all authority

13a

over persons and property, necessary or expedient for

meeting said state of emergency, which the general

court in the exercise of its constitutional authority may

confer upon him as supreme executive magistrate of

the commonwealth and commander-in-chief of the

military forces thereof.” St. 1950, c. 639, § 7. The

Legislature enacted St. 1950, c. 639, as a temporary

measure. See St. 1950, c. 639, § 22 (providing CDA

would run only to July 1, 1952); Director of the Civ.

Defense Agency & Office of Emergency Preparedness

v. Civil Serv. Comm'n, 373 Mass. 401, 404 (1977). The

sunset clause was later extended and eventually

removed. See St. 1952, c. 269; St. 1953, c. 491.

Section 5 of the CDA, on which the plaintiffs

focus their statutory interpretation argument, and

under which the Governor, in part, declared the state

of emergency, provides, in relevant part:

“Because of the existing possibility of the

occurrence of disasters of unprecedented

size and destructiveness resulting from

enemy attack, sabotage or other hostile

action, in order to insure that the

preparations of the commonwealth will

be adequate to deal with such disasters,

and generally to provide for the common

defense and to protect the public peace,

health, security and safety, and to

preserve the lives and property of the

people of the commonwealth, if and

when the congress of the United States

shall declare war, or if and when the

President of the United States shall by

proclamation or otherwise inform the

governor that the peace and security of

14a

the commonwealth are endangered by

belligerent acts of any enemy of the

United States or of the commonwealth or

by the imminent threat thereof; or upon

the occurrence of any disaster or

catastrophe resulting from attack,

sabotage or other hostile action; or from

riot or other civil disturbance; or from

fire, flood, earthquake or other natural

causes; or whenever because of absence

of rainfall or other cause a condition

exists in all or any part of the

commonwealth

whereby

may

reasonably be anticipated that the

health, safety or property of the citizens

thereof will be endangered because of

fire or shortage of water or food; or

whenever the accidental release of

radiation from a nuclear power plant

endangers the health, safety, or property

of people of the commonwealth, the

governor may issue a proclamation or

proclamations setting forth a state of

emergency.”

St. 1950, c. 639, § 5, as amended through St. 1979, c.

796, § 26. The CDA further specifies that “[t]he

governor ... shall be responsible for carrying out the

provisions of this act,” St. 1950, c. 639, § 4, and that

the Governor may exercise any of the authority

conferred on him by any provision of the CDA in a

declaration of emergency under § 5, including

through executive orders issued thereafter, St. 1950,

c. 639, § 8.

15a

The plaintiffs contend that we must apply the

statutory interpretation canon of ejusdem generis19

because § 5 of the CDA contains general terms

preceded by specific, limiting terms. However, where,

as here, the language of a statute “is unambiguous

and when its application ‘would not lead to an “absurd

result,” or contravene the Legislature’s clear intent,’ ”

we follow the plain language. Kelly, 470 Mass. at 689,

quoting Cargill, Inc., 429 Mass. at 82. See Gooch v.

United States, 297 U.S. 124, 128 (1936) (“The rule of

ejusdem generis ... is only an instrumentality for

ascertaining the correct meaning of words when there

is uncertainty.... [I]t may not be used to defeat the

obvious purpose of legislation”).

Because the CDA does not specify that the

Governor's power to declare a state of emergency

extends to the COVID-19 pandemic specifically or to a

health crisis generally, the Governor's power turns on

whether the phrase “other natural causes” in § 5

encompasses a health crisis such as the COVID-19

pandemic. We note first that COVID-19 is naturally

caused, as scientists believe it originated from an

animal, likely a bat. When examining the phrase

“other natural causes” in the context of § 5 and the

statute as a whole, Kelly, 470 Mass. at 688-689, it is

apparent that the phrase encompasses a pandemic on

the scale of the COVID-19 pandemic. Section 5 states

the general purposes of the CDA as, in part, “to protect

19 Ejusdem generis “applies to lists ‘[w]here general words

follow specific words in a statutory enumeration.’ ” See Carey v.

Commissioner of Correction, 479 Mass. 367, 370 n.6 (2018),

quoting Banushi v. Dorfman, 438 Mass. 242, 244 (2002). “It limits

the ‘general terms which follow specific ones to matters similar to

those specified.’ ” Carey, supra, quoting Commonwealth v. Gallant,

453 Mass. 535, 542 (2009).

16a

the public peace, health, security and safety, and to

preserve the lives and property of the people of the

commonwealth.” St. 1950, c. 639, § 5. Given that

COVID-19 is a pandemic that has killed over a million

people worldwide, it spreads from person to person,

effective vaccines have not yet been distributed, there

is no known cure, and a rise in cases threatens to

overrun the Commonwealth's hospital system, it is a

natural cause for which action is needed to “protect

the public peace, health, security and safety, and to

preserve the lives and property of the people of the

commonwealth.” Id. Therefore, we conclude that the

CDA, through the phrase “other natural causes,”

encompasses a health crisis on the level of the

COVID-19 pandemic.

b. The PHA. The PHA covers an array of public

health related issues in the Commonwealth. See, e.g.,

G. L. c. 111, §§ 4G (care for epileptics), 8C (fluoridation

of water supplies), 72D (telephone access at long-term

care facilities), 127A (adoption and enforcement of

State sanitary code). Specific to the COVID-19

pandemic, the plaintiffs argue that certain sections of

the PHA pertain to the control of the pandemic and

preclude the Governor from acting under the CDA.20

See, e.g., G. L. c. 111, § 6 (“The [Department of Public

Health] shall have the power to define ... what diseases

shall be deemed to be dangerous to the public health,

and shall make such rules and regulations consistent

with law for the control and prevention of such

diseases as it deems advisable for the protection of the

20 The plaintiffs cite G. L. c. 111, §§ 1, 2, 6, 7, 92, 95, 96,

96A, 104, 106, 111, 111C, 112, 113.

17a

public health”). However, although it is evident that

the PHA was designed to protect Massachusetts

residents from, among other things, dangerous

diseases, there is nothing to prevent the CDA from

supplementing the PHA during times of actual public

health emergencies, such as the COVID-19 pandemic.

The PHA and the CDA differ significantly in

the scope of the emergency they seek to address. It is

clear from the language of both acts that the

Legislature could not have intended the PHA, and

therefore primarily local boards of health, to be

exclusively responsible for addressing a public health

crisis such as COVID-19, a pandemic that has killed

over one million people globally and over 10,000

people in Massachusetts. The CDA is broader in scope

for emergencies of a larger magnitude than is

encompassed by the PHA, which focuses largely on

the actions required of local boards. See G. L. c. 111,

§§ 104 (“If a disease dangerous to the public health

exists in a town, the selectmen and board of health

shall use all possible care to prevent the spread of the

infection ...”), 106 (“The board of health of a town near

to or bordering upon an adjoining state may in writing

appoint suitable persons ... who may examine such

travelers as the board suspects of bringing any

infection dangerous to the public health, and, if

necessary, restrain them from traveling until licensed

thereto by the board of health of the town to which

they may come”). In contrast, the CDA contemplates

the need to prepare for and respond to a serious

disaster requiring swift, top-down, coordinated relief

efforts. See, e.g., St. 1950, c. 639, §§ 1 (defining “[c]ivil

defense”), 5(a) (upon proclamation of state of

emergency, Governor “may employ every agency and

all members of every department and division of the

18a

government of the commonwealth to protect the lives

and property of its citizens and to enforce the law”), 7

(Governor “shall have and may exercise any and all

authority over persons and property, necessary or

expedient for meeting said state of emergency”). It

therefore appears that with the emphasis on

empowering local boards of health, the Legislature

contemplated the PHA to address public health issues

confined

particular

locales

within

the

Commonwealth. On the other hand, it appears that

with the latitude given to the Governor to respond to

“other natural causes,” the Legislature created the

CDA to deal with Statewide public health crises

beyond the scope of local authorities. In essence, the

existence of the CDA and the PHA demonstrates a

legislative intent not to limit the Governor's ability to

manage a public health crisis like the COVID-19

pandemic, but to empower him to do so.

Moreover, the CDA directs the Governor and executive

officers to utilize, to the maximum extent practicable,

the existing State and local departments, agencies,

officers, and personnel in carrying out the provisions of

the CDA. St. 1950, c. 639, § 16. See St. 1950, c. 639,

§ 20 (all members of governmental bodies must “fully

... co-operate with the governor and the director of civil

defense in all matters affecting civil defense”). See also

St. 1950, c. 639, § 13 (political subdivisions empowered

“to enter into contracts and incur obligations

necessary to combat such disaster, protecting the

health and safety of persons and property, and

providing emergency assistance to the victims of such

disaster”). Therefore, although under a different

framework from the PHA, local organizations and

agencies are part of the over-all CDA scheme.

19a

Accordingly, because the CDA encompasses a

larger scale emergency requiring executive action

coordinating State resources, the PHA is focused on

local health boards, and neither the PHA nor the CDA

contains language precluding the Governor from

acting under the CDA when faced with a public health

emergency, the PHA does not preclude the Governor

from acting under the CDA in relation to the COVID19 pandemic.21

c. Looking forward. Despite our emphasis on

the serious nature of the COVID-19 pandemic, we are

cognizant of the limits of the Governor’s power under

the CDA.

As is the case here, when the Governor acts

pursuant to an express authorization of the

Legislature, “his authority is at its maximum, for it

includes all that he possesses in his own right plus all

that [the Legislature] can delegate.” Youngstown Sheet

& Tube Co. v. Sawyer, 343 U.S. 579, 635-637 (1952)

(Jackson, J., concurring) (“If his act is held

unconstitutional under these circumstances, it usually

means that the [State] Government as an undivided

whole lacks power”). In Youngstown Sheet & Tube Co.,

the President ordered the Secretary of Commerce to

21 The plaintiffs’ argument that because the CDA is a

special law, and therefore not codified in the General Laws, the

Legislature did not intend for it to apply to diseases also is

unavailing. From a legal perspective, a special act has the same

force and effect as a General Law. See, e.g., Legislative Research

Council, Report Relative to Civil Defense, 1971 House Doc. No.

5034, at 65, 66 (“it has been the accepted practice of the General

Court not to incorporate either statutes with a specific expiration

date or statutes applicable to a unique situation in the General

Laws”).

20a

take possession of and operate most of the steel mills

in the country, and because he did not act pursuant to

an act of Congress, the issue was whether the

Constitution provided the President with the authority

to issue the order. Id. at 582-583, 585-587, 72 S.Ct.

863. The United States Supreme Court held that the

“Constitution [did] not subject this lawmaking power

of Congress to presidential ... supervision or control.”

Id. at 588-589, 72 S.Ct. 863 (“The Founders of this

Nation entrusted the lawmaking power to the

Congress alone in both good and bad times”).

In Justice Jackson’s concurrence, he detailed

three levels of executive action: (1) when the executive

acts pursuant to an express or implied legislative

authorization, (2) when the executive acts where the

Legislature has neither granted nor denied his

authority, and (3) when the executive's actions are

incompatible with the express or implied will of the

Legislature. Id. at 635-637 (Jackson, J., concurring).

Actions taken under the first level receive the

strongest presumption of validity, whereas when the

executive acts under the third level, his or her “power

is at its lowest ebb” and “[c]ourts can sustain exclusive

[executive] control in such a case only by disabling the

[Legislature] from acting upon the subject.” Id. at

635-638.

In the present case, it is the language of the

CDA, and therefore an express authorization from the

Legislature, that enables the Governor to act.

However, although we determine that the Governor is

acting pursuant to an express grant of authority from

the Legislature, we emphasize that not all matters

that have an impact on the public health will qualify

as “other natural causes” under the CDA, even though

they may be naturally caused. The distinguishing

21a

characteristic of the COVID-19 pandemic is that it has

created a situation that cannot be addressed solely at

the local level. Only those public health crises that

exceed the resources and capacities of local

governments and boards of health, and therefore

require the coordination and resources available under

the CDA, are contemplated for coverage under the

CDA. Therefore, although we hold that the COVID-19

pandemic falls within the CDA, we do not hold that

all public health emergencies necessarily will fall

within the CDA, nor do we hold that when the public

health data regarding COVID-19 demonstrates stable

improvement, the threshold will not be crossed where

it no longer constitutes an emergency under the CDA.

2. Separation of powers under art. 30. The

plaintiffs next argue that the Governor’s emergency

orders violate art. 30. They contend that the Governor

“does not have the authority to suspend, dispense, or

make law backed with civil and criminal penalties

through his COVID-19 Orders.” The Governor

counters that the emergency orders fall within the

limits on executive authority set by the

Massachusetts Constitution because the Governor is

discharging his constitutional duty to execute the

laws and because the orders are grounded in

statutory authority delegated to the Governor. We

conclude that because the Governor's actions were

carried out pursuant to the authority granted to the

Governor in the CDA, the emergency orders do not

violate art. 30.

Article 30 provides:

“In

the

government

this

commonwealth,

the

legislative

department shall never exercise the

22a

executive and judicial powers, or either

of them: the executive shall never

exercise the legislative and judicial

powers, or either of them: the judicial

shall never exercise the legislative and

executive powers, or either of them: to

the end it may be a government of laws

and not of men.”

The General Court is the Commonwealth’s

legislative department, and the Governor is its

“supreme executive magistrate.” See Part II, c. 1, § 1,

Art. 1, and Part II, c. II, § 1, Art. 1, of the Constitution

of the Commonwealth. “We have recognized that art.

30 does not rigidly demand a total separation between

the three branches of government but rather that

there is a ‘need for some flexibility in the allocation of

functions among the three departments.’” Boston Gas

Co. v. Department of Pub. Utils., 387 Mass. 531, 541

(1982), quoting Opinion of the Justices, 375 Mass.

795, 813 (1978). “The critical inquiry is whether the

actions of one branch interfere with the functions of

another.” Boston Gas Co., supra, citing Opinion of the

Justices, supra.

We first note that the Governor asserts that the

Legislature has expressed its approval of his actions

through its enactment of a wide range of legislation to

address the COVID-19 pandemic subsequent to the

emergency declaration. Assuming for the purposes of

this discussion that the Legislature has approved the

Governor's actions by not moving to curtail them, this

does not absolve us of our responsibility to determine

whether the emergency orders are within the bounds

of art. 30. We can look to the Legislature's lack of

exercise of the option under § 22 of the CDA to make

23a

any part of the CDA inoperative as an indication that

it approves of the Governor's actions, but that inaction

is not determinative of our decision. See St. 1950, c.

639, § 22. The validity of the Governor’s actions is for

the courts—not the Legislature—to decide.

We conclude that the emergency orders do not

interfere with the functions of the Legislature. See

Boston Gas Co., 387 Mass. at 541, citing Opinion of

the Justices, 375 Mass. at 813. As we have determined

supra that the CDA provides authority for the

Governor’s declaration of the state of emergency and

for his issuance of the emergency orders, by issuing

the emergency orders, the Governor is executing the

laws. See Opinion of the Justices, 375 Mass. 827, 833

(1978) (“constitutional prerogative, as well as duty, of

the Governor to execute the laws”). In addition to the

Legislature providing the Governor with the

authority to act under the CDA, the Governor states

in each emergency order the sections that authorize

him to act during the effective period of a declared

emergency. See, e.g., Order Extending the Temporary

Closure of All Public and Private Elementary and

Secondary Schools, COVID-19 Order No. 16 (Mar. 25,

2020) (identifying St. 1950, c. 639, §§ 7, 8, and 8A, as

“authoriz[ing] the Governor, during the effective

period of a declared emergency, to exercise any and

all authority over persons and property necessary or

expedient for meeting a state of emergency, including

but not limited to authority over public assemblages

in order to protect the health and safety of persons”).

Because the Governor was acting under an express

authorization of the Legislature, namely, the CDA,

his authority was, therefore, at its maximum. See

Youngstown Sheet & Tube Co., 343 U.S. at 635-637

(Jackson, J., concurring).

24a

Moreover, the emergency orders do not, as the

plaintiffs argue, “deprive the Legislature of its full

authority to pass laws.” See Opinion of the Justices,

430 Mass. 1201, 1203 (1999). Since the Governor

declared the state of emergency, the Legislature has

enacted many pieces of legislation to address COVID19. See, e.g., St. 2020, c. 118 (expanding take-out and

delivery options); St. 2020, c. 71 (virtual notarization);

St. 2020, c. 65 (eviction and foreclosure moratorium);

St. 2020, c. 45 (municipal election postponement and

increased voting options). The CDA also provides that

the Legislature can make any part of the CDA

“inoperative by the adoption of a joint resolution to

that effect by the house and senate acting

concurrently.” See St. 1950, c. 639, § 22. Therefore,

not only have the emergency orders not precluded the

Legislature from exercising its full authority to pass

laws, but the Legislature also has at its disposal a way

to curb the Governor's powers under the CDA, should

it desire to do so, and it has not done so.22 See Boston

Gas Co., 387 Mass. at 541, citing Opinion of the

Justices, 375 Mass. at 813 (“critical inquiry is whether

the actions of one branch interfere with the functions

22 The plaintiffs’ argument that the emergency orders

amount to an improper exercise of police power also fails. The

Legislature can delegate the police power, see Arno v. Alcoholic

Beverages Control Comm’n, 377 Mass. 83, 88-89 (1979); Milton

v. Donnelly, 306 Mass. 451, 459 (1940), and the penalties that

are provided for in some of the emergency orders, see, e.g., Order

No. 13, are provided pursuant to the CDA. See St. 1950, c. 639,

§ 8 (“Whoever violates any provision of [an executive order or

general regulation promulgated by the governor under the CDA]

... shall be punished by imprisonment for not more than one year,

or by a fine of not more than [$500], or both”).

25a

of another”).23 For the foregoing reasons, we conclude

that the emergency orders do not violate art. 30.24

The plaintiffs state that the Legislature cannot

delegate its lawmaking prerogative to the Governor; however,

they have not demonstrated how the Governor’s actions serve to

abrogate this power. The argument does not rise to the level

required for appellate advocacy. See Mass. R. A. P. 16 (a)(9)(A),

as appearing in 481 Mass. 1628 (2019). Moreover, nothing in the

Governor's actions prevents the Legislature from exercising its

lawmaking prerogative or police power.

The United States District Court for the Western

District of Michigan certified questions to the Michigan Supreme

Court relating to the Michigan Governor’s authority to issue her

COVID-19 emergency orders. In re Cetified Questions from the

U.S. Dist. Court, No. 161492, slip op. at 2 (Mich. Oct. 2, 2020 (In

re Certified Questions). The Michigan Supreme Court held that (1)

absent legislative authorization, the Michigan Governor did not

possess the authority under the Emergency Management Act,

Mich. Comp. Laws §§ 30.401 et seq., to redeclare a state of

emergency or state of disaster based on the COVID-19 pandemic

after the twenty-eight days provided for in the statute had run;

and (2) because the Emergency Powers of the Governor Act of

1945, Mich Comp. Laws §§ 10.31 et seq., was an unlawful

delegation of legislative power to the executive branch, the

Michigan governor did not possess the authority to exercise

emergency powers under that act. Id. Although the Michigan

Supreme Court addressed facially similar issues to the ones at

hand in the present matter, a deeper look reveals two core

differences. First, unlike the Michigan Emergency Management

Act, the CDA does not contain a requirement that a set number of

days after declaring a state of disaster or state of emergency “the

governor shall issue an executive order or proclamation declaring

the [state of disaster or state of emergency] terminated, unless a

request by the governor for an extension of a number of days is

approved by resolution of both houses of the legislature.” See

Mich. Comp. Laws §§ 30.403(3), (4). Second, although the court

determined that the Emergency Powers of the Governor Act was

an unlawful delegation of power because of the broad scope and

26a

3. Constitutional rights. The plaintiffs also

argue that the emergency orders violate their Federal

and State constitutional rights to due process and

assembly. The Governor counters that the emergency

orders do not violate the plaintiffs' Federal and State

due process and assembly rights and that broad

deference should be afforded to the emergency orders.

We conclude that the emergency orders do not violate

the plaintiffs’ Federal or State due process or

assembly rights.

As an initial matter, the Governor argues that

under Jacobson v. Massachusetts, 197 U.S. 11 (1905),

during times of public health crises State action should

be upheld unless it lacks a “real or substantial relation

to the protection of the public health” or represents “a

plain, palpable invasion of rights secured by the

fundamental law.” Id. at 31. In South Bay United

Pentecostal Church v. Newsom, 140 S. Ct. 1613 (2020)

(South Bay), in which the applicants sought to enjoin

the enforcement of the California Governor’s order

limiting attendance at places of worship, Chief Justice

Roberts’s concurrence relied, in part, on Jacobson,

stating that “[the United States] Constitution

principally entrusts ‘[t]he safety and health of the

indefinite duration of the delegated powers, and the standards

of being “reasonable” and “necessary” that governed the

Michigan governor’s exercise of emergency powers were not

sufficient to render the statute constitutional, In re Certified

Questions, supra at 31-33, the differentiating factor is that the

CDA provides substantially more detail and guidance to the

governor than the Emergency Powers of the Governor Act

provided the Michigan Governor. Compare Mich. Comp. Laws

§§ 10.31, 10.32, 10.33, with St. 1950, c. 639, §§ 1-22.

27a

people’ to the politically accountable officials of the

States ‘to guard and protect.’” Id. at 1613 (Roberts,

C.J., concurring), quoting Jacobson, supra at 38.

Chief Justice Roberts further elaborated that “[w]hen

those officials ‘undertake[ ] to act in areas fraught

with medical and scientific uncertainties,’ their

latitude ‘must be especially broad.’ ” South Bay,

supra, quoting Marshall v. United States, 414 U.S.

417, 427 (1974). “Where those broad limits are not

exceeded, they should not be subject to secondguessing by an ‘unelected [State] judiciary,’ which

lacks the background, competence, and expertise to

assess public health and is not accountable to the

people.” South Bay, supra at 1613-1614, quoting

Garcia v. San Antonio Metro. Transit Auth., 469 U.S.

528, 545 (1985). Therefore, as long as the “broad

limits” are not surpassed, we will look to see whether

the emergency orders bear a “real or substantial

relation to the protection of the public health,”

Jacobson, supra at 31, and will not second guess the

emergency orders.25

25 In County of Butler v. Wolf, U.S. Dist. Ct., No. 2:20-cv-

677, 2020 WL 5647480 (W.D. Pa. Sept. 14, 2020), the judge was

presented with a constitutional challenge to the Pennsylvania

Governor’s orders related to the COVID-19 pandemic. In

determining the constitutional standard to apply, the judge

rejected the defendants’ argument that the deferential standard

of Jacobson v. Massachusetts, 197 U.S. 11 (1905), should apply,

instead applying “regular” constitutional scrutiny. County of

Butler, supra at 17. The judge stated: “Although the Jacobson

Court unquestionably afforded a substantial level of deference to

the discretion of state and local officials in matters of public

health, it did not hold that deference is limitless.” Id. at 13. The

judge quoted from Jacobson for the proposition that a public

health measure may violate the Constitution:

28a

a. Due process. The plaintiffs argue that the

emergency orders violated their rights to procedural

and substantive due process under art. 10 of the

Massachusetts Declaration of Rights and under the

due process clause of the Fourteenth Amendment to

the United States Constitution.

“Before closing this opinion we deem it

appropriate,

order

prevent

misapprehension [of] our views, to observe—

perhaps to repeat a thought already sufficiently

expressed, namely—that the police power of a

[S]tate, whether exercised ... by the legislature,

or by a local body acting under its authority, may

be exerted in such circumstances ... or by

regulations so arbitrary and oppressive in

particular cases ... as to justify the interference

of the courts to prevent wrong and oppression.”

(Alterations added to reflect original language in

Jacobson.)

Id., quoting Jacobson, supra at 38. The judge went on to

note that other courts and commentators question whether

“[Jacobson] remains instructive in light of the [tiered levels of

scrutiny developing after Jacobson].” County of Butler, supra at

13-14. And the core basis of the judge’s reasoning was that

“Jacobson should not be interpreted as permitting the

‘suspension’ of traditional levels of constitutional scrutiny in

reviewing challenges to COVID-19 mitigation measures.” Id. at

16, 17, citing Wiley & Vladeck, Coronavirus, Civil Liberties, and

the Courts: The Case Against “Suspending” Judicial Review, 133

Harv. L. Rev. F. 179, 182 (2020) (“Two considerations inform this

decision—the ongoing and open-ended nature of the restrictions

and the need for an independent judiciary to serve as a check on

the exercise of emergency government power”).

We agree that Jacobson does not lead us to disregard

constitutional scrutiny and defer completely to the executive’s

orders. Instead, we determine the appropriate level of scrutiny

and analyze the issues thereunder.

29a

i. Procedural due process. The plaintiffs contend

that their procedural due process rights were violated

because the Governor failed to provide adequate

process before burdening or denying their liberty and

property interests. The Governor argues that the

plaintiffs were not entitled to individual hearings

because the emergency orders were in response to a

public health crisis and because the emergency orders

were not adjudications, but instead were rules of

general and prospective application. We disagree with

the plaintiffs’ assertion because the emergency orders

were general rules, not individual adjudications. See

American Grain Prods. Processing Inst. v. Department

of Pub. Health, 392 Mass. 309, 323 n.20 (1984) (“It is

well settled that, where a proceeding is legislative or

political rather than adjudicatory, a hearing is not

essential to due process ...”). Adjudications involve

“specifically identified persons” who are affected,

whereas general rules involve legislative or policy

decisions that have a prospective and general

application. See Cambridge Elec. Light Co. v.

Department of Pub. Utils., 363 Mass. 474, 486-487

(1973). The emergency orders were general rules

because they are policy decisions that apply

prospectively to entire categories of organizations. See

id.; Hayeck v. Metropolitan Dist. Comm’n, 335 Mass.

372, 374-375 (1957). Therefore, because general rules

do not require an individualized, adjudicatory hearing,

see American Grain Prods. Processing Inst., supra, the

absence of the additional procedures here did not

violate the plaintiffs’ rights to procedural due process.26

26 The emergency orders are not, as the plaintiffs argue,

required to go through notice and comment rulemaking pursuant

to G. L. c. 30A, § 2. General Laws c. 30A, § 2, in part, requires an

agency to hold a public hearing before the adoption of a regulation

30a

ii. Substantive due process. The plaintiffs

contend that the emergency orders violate their

substantive due process rights because the emergency

orders interfere with their enjoyment of their liberty

and property interests and because the Governor

unlawfully dispensed with the law by deciding

arbitrarily which businesses were “essential,” and that

only some businesses could reopen. The Governor

argues that the emergency orders do not violate the

plaintiffs' substantive due process rights because in

crafting the emergency orders, he consulted

recommendations from public health officials and acted

in accordance with public health recommendations,

and because the plaintiffs do not have a constitutional

right to conduct their business, religious, or

educational activities free from government regulation.

We determine that the Governor did not act arbitrarily

and that the emergency orders did not violate the

plaintiffs’ substantive due process rights.

When analyzing due process challenges under

art. 10, we “adhere[ ] to the same standards followed

in Federal due process analysis.” Gillespie v.

Northampton, 460 Mass. 148, 153 n.12 (2011), quoting

Goodridge v. Department of Pub. Health, 440 Mass.

309, 353 (2003) (Spina, J., dissenting). When a

fundamental right is burdened, we apply strict

scrutiny, which requires that governmental restraints

be “narrowly tailored to further a legitimate and

if violation of the regulation is punishable by a fine or

imprisonment. However, the Governor is exempt from the

statute’s definition of “agency,” G. L. c. 30A, § 1(2), and G. L. c.

30A, §§ 1A-1D, which apply the hearing requirement to State

bodies that are exempt from the definition of “agency,” do not

include the Governor.

31a

compelling governmental interest” (citation omitted).

Gillespie, supra at 153. We apply rational basis

review where the statute does not “collide with a

fundamental right.” Id. As a matter of due process,

under the rational basis test, governmental action is

“constitutionally sound if it is reasonably related to

the furtherance of a valid State interest.” Id.

To the extent the plaintiffs argue that operating

a business, teaching one's child, and assembling for

religious reasons are burdened by the emergency

orders, these arguments do not subject the emergency

orders to strict scrutiny. The right to work is not a

fundamental right that receives strict scrutiny,

Commonwealth v. Henry’s Drywall Co., 366 Mass. 539,

542 (1974); the orders do not ban teaching children,

but rather limit gatherings in schools; and limitations

on religious gatherings to mitigate COVID-19 risks are

valid as long as the limitations are no more stringent

than those imposed on similarly situated secular

institutions, which they are in this case,27 see Roman

Catholic Diocese v. Cuomo, 141 S. Ct. 63, (2020); South

Bay, 140 S. Ct. at 1613 (Roberts, C.J., concurring).

We further disagree with the plaintiffs that the

Governor unlawfully has dispensed with the law,

thereby rendering the emergency orders arbitrary and

a violation of the plaintiffs’ substantive due process

rights. The plaintiffs note that the CDA allows for the

The petitioners have not argued that the houses of

worship are being treated differently from the secular businesses.

Nevertheless, we have reviewed the orders relating to houses of

worship in light of the order in Roman Catholic Diocese v. Cuomo,

141 S.Ct. 63 (2020), and we have concluded that the Governor’s

orders do not suffer from the same features criticized by the

Court in that case.

32a

“suspension of the operation of [law]” in certain

circumstances, St. 1950, c. 639, § 7(k), and they cite

Picquet, appellant, 5 Pick. 65, 69-70 (1827), for the

proposition that a suspension of the law affects all

people equally. They argue, however, that instead of

suspending the law, the Governor has dispensed with

the law by closing and then reopening some, but not

all, businesses. Dispensing with the law occurs when

the Legislature, or one acting with authority from the

Legislature, “suspend[s] any of the general laws,

limiting the suspension to an individual person, and

leaving the law still in force in regard to every one

else.” Id. See Commissioner of Pub. Health v. Bessie M.

Burke Memorial Hosp., 366 Mass. 734, 741 (1975).

That is not what the emergency orders have done.

Although the emergency orders do place different

businesses in different categories, this does not equate

to dispensing with the law, as the emergency orders do

not limit the suspension of the law to an individual

person, or group, but instead apply equally to similarly

situated categories of businesses. The Governor is

not, as the plaintiffs argue, “donn[ing] the mantle and

crown” to pick winners and losers; he is making

difficult decisions about which types of businesses are

“essential” to provide people with the services needed

to live and which types of businesses are more

conducive to spreading COVID-19, and basing his

emergency orders on those determinations. Because

the CDA grants the Governor the authority to issue

the emergency orders, and because the emergency

orders applied to broad categories of similarly

situated businesses and organizations, we conclude

that the emergency orders did not dispense with the

law, were not arbitrary, and therefore did not violate

the plaintiffs’ substantive due process rights.

33a

Because we determine that the emergency

orders do not burden the plaintiffs’ fundamental rights,

and we reject the plaintiffs’ arguments that the

emergency orders’ status as executive-made law

renders them subject to strict scrutiny and that they

dispense with the law, we conclude that the emergency

orders are subject to rational basis review. The

emergency orders as a whole were informed by public

health recommendations and serve the State interest

of slowing the spread of COVID-19, which is a

legitimate State interest. See Jacobson, 197 U.S. at 31;

Gillespie, 460 Mass. at 153. Although some businesses

and organizations bear a larger burden than others

under the emergency orders, this alone does not render

arbitrary the restrictions imposed by the emergency

orders.28 Therefore, the emergency orders do not

violate the plaintiffs’ substantive due process rights.

b. Free assembly. The plaintiffs argue that the

emergency orders unconstitutionally burden their right

28 The plaintiffs use the example of arcades and casinos

being in different opening phases. Casinos were allowed to open

in phase three, whereas arcades were moved from phase three to

phase four, but were thereafter allowed to reopen in September

2020. See Order Authorizing the Re-opening of Phase III

Enterprises, COVID-19 Order No. 43 (July 2, 2020); Order Making

Certain Phase III Adjustments, COVID-19 Order No. 50 (Sept. 10,

2020). Although at first glance, casinos and arcades seem like they

would pose the same level of risk for patrons, unlike arcades,

casinos are highly regulated by the Gaming Commission, and

Massachusetts has only three casinos. The high level of regulation

that could lessen the risk of spread of COVID-19 suffices as a

reason for the Governor to have placed the entities in different

phases. See New Orleans v. Dukes, 427 U.S. 297, 303 (1976);

Gillespie v. Northampton, 460 Mass. 148, 153 (2011).

34a

to free assembly under art. 19 of the Massachusetts

Declaration of Rights and the First Amendment to the

United States Constitution. We agree with the

Governor that the emergency orders are valid time,

place, and manner restrictions.

States may impose reasonable restrictions on

the time, place, or manner of protected speech and

assembly “provided the restrictions ‘are justified

without reference to the content of the regulated

speech, that they are narrowly tailored to serve a

significant governmental interest, and that they leave

open ample alternative channels for communication

of the information.’ ” Boston v. Back Bay Cultural

Ass’n, Inc., 418 Mass. 175, 178-179 (1994), quoting

Ward v. Rock Against Racism, 491 U.S. 781, 791,

(1989). The same test applies to restrictions analyzed

under art. 19. Opinion of the Justices, 430 Mass. 1205,

1208-1209 & n.3 (2000). We agree with the Governor

that reducing the dangers of COVID-19 is a

significant government interest, and we therefore

look to whether the emergency orders are content

neutral and narrowly tailored and leave open

alternative channels of communication.

We first determine that the emergency orders

are content neutral. The “principal inquiry in

determining content neutrality ... in time, place, or

manner cases ... is whether the government has

adopted a regulation of speech because of disagreement

with the message it conveys.” Back Bay Cultural Ass’n,

Inc., 418 Mass. at 179, quoting Ward, 491 U.S. at 791.

An order may regulate the secondary effects of speech

and assembly, such as public health, without being

held to regulate the expressive content of the speech or

assembly at issue. See Showtime Entertainment, LLC

v. Town of Mendon, 472 Mass. 102, 107 (2015), quoting

35a

Renton v. Playtime Theatres, Inc., 475 U.S. 41, 47-48

(1986).

Here, the purpose of the emergency orders is

unrelated to regulating the expressive content of the

regulated activities. The emergency orders, and the

regulations they impose, are based on the public health

data regarding the risks of COVID-19 spreading in

certain types of environments and on which businesses

are essential in the circumstances presented by the

pandemic.29 See, e.g., Order No. 13 (list of essential

businesses and other organizations “based on federal

guidance and amended to reflect the needs of

Massachusetts’[s] unique economy”).

We next determine that the emergency orders

are narrowly tailored. A time, place, or manner

restriction must be tailored narrowly to achieve a

29 No. 46 exempts political and religious gatherings from

its reach, but this exemption does not render the order viewpoint

based. See Third Revised Order Regulating Gatherings

Throughout the Commonwealth, COVID-19 Order No. 46 (Aug.

7, 2020) (Order No. 46). If exemptions “represent a governmental

attempt to give one side of a debatable public question an

advantage in expressing its views to the people,” exemptions can

invalidate an otherwise content-neutral regulation. See McCullen

v. Coakley, 573 U.S. 464, 483 (2014), quoting Ladue v. Gilleo, 512

U.S. 43, 51 (1994). Here, the exemptions do not invalidate the

restriction because the exemptions can be justified in light of the

secondary effect on public health, see Showtime Entertainment,

LLC v. Mendon, 472 Mass. 102, 107 (2015), quoting Renton v.

Playtime Theatres, Inc., 475 U.S. 41, 47-48 (1986), ad also

because religious gatherings are subject to the limitations set

forth in the “Places of worship” guidance and it was social

gatherings that the order specifically identified as contributing

to the rise in the infection rate. See Order No. 46 (“clusters of

COVID-19 infections have been traced to house parties in the

Commonwealth and in other States”).

36a

substantial government interest, but “it need not be

the least restrictive or the least intrusive means of

doing so.” Opinion of the Justices, 430 Mass. at 1211,

quoting Ward, 491 U.S. at 799. We will uphold a

restriction “[s]o long as the means chosen are not

substantially broader than necessary to achieve the

government's interest.” Showtime Entertainment, LLC,

472 Mass. at 109, quoting Ward, supra at 800. The

restrictions at issue readily meet this standard, as

reducing the number of people who can gather together

and taking other measures aimed at reducing the rate

of COVID-19, which spreads from person-to-person

contact, are not “substantially broader than necessary

to achieve the government's interest” of reducing the

spread of COVID-19. See Showtime Entertainment,

LLC, supra, quoting Ward, supra.

We also determine that the emergency orders

leave open alternative channels of communication. The

orders limit the number of people allowed at most

gatherings, but do not ban all in-person assembly, and

the plaintiffs have alternative ways to assemble, such

as through virtual assembly. See Renton, 475 U.S. at

53-54 (leaving more than five percent of town available

for adult theaters provided sufficient alternative

channels of communication); Opinion of the Justices,

430 Mass. at 1211-1212 (proposed buffer zone law left

open alternative channels of communication because

protests could still occur outside designated zones);

Friends of Danny DeVito v. Wolf, 227 A.3d 872, 903,

cert. denied, 141 S. Ct. 239 (2020) (restrictions did not

ban all in-person gatherings, and online mediums of

communication also sufficed).

Therefore, the emergency orders do not

unconstitutionally burden the plaintiffs’ right to free

assembly because reducing the dangers of COVID-19

37a

is a significant government interest, and because the

emergency orders are content neutral and narrowly

tailored, and they leave open alternative channels of

communication.

Conclusion. For the foregoing reasons, we

conclude that the CDA provides the Governor with

the authority for his March 10, 2020, declaration of a

state of emergency in response to the COVID-19

pandemic and for his issuance of the emergency

orders; the emergency orders do not violate art. 30;

and they do not violate the plaintiffs’ Federal or State

constitutional rights to procedural and substantive

due process or free assembly.

So ordered.

38a

APPENDIX B

COMMONWEALTH OF MASSACHUSETTS

SUFFOLK, SS.

SUPREME

JUDICIAL

COURT

FOR SUFFOLK COUNTY

NO. SJ-2020-0505

___________________

DAWN DESROSIERS & OTHERS1

VS.

CHARLES D. BAKER, in his official capacity as

Governor of the Commonwealth of Massachusetts

RESERVATION AND REPORT

The petitioners, individuals, business owners,

schools, and religious organizations, filed in the

Superior Court a complaint challenging the Governor’s

authority to declare a state of emergency relative to

the COVID-19 pandemic under the Civil Defense Act,

St. 1950, c. 639, § 5, and to issue the related emergency

1 Dawn Desrosiers, Dawn Desrosiers d/b/a Hair 4 You,

Susan Kupelian, Nazareth Kupelian, Naz Kupelian Salon, Carla

Agrippino-Gomes, Terramia, Inc., Antico Forno, Inc., James P.

Montoro, Pioneer Valley Baptist Church Incorporated, Kellie

Fallon, Bare Bottom Tanning Salon, Thomas E. Fallon, Thomas

E. Fallon d/b/a Union Street Boxing, Robert Walker, Apex

Entertainment LLC, Devens Common Conference Center LLC,

Luis Morales, Vida Real Evangelical Center, Ben Haskell,

Trinity Christian Academy of Cape Cod.

39a

orders he has issue. The petitioners also assert that the

emergency orders violate their rights to substantive

and procedural due process and to free assembly. This

matter came before me on the parties’ joint motion to

transfer this case from the Superior Court to this court,

pursuant to pursuant to [sic] G.L. c. 211, § 4A, and to

reserve and report the matter to the full court.

Due to the nature of the questions raised, and

the multiple pending cases in State and Federal courts

related to these issues of State-wide significance, the

parties’ motion to transfer is the most expeditious way

to resolve the questions presented in the petitioner’s

complaint. Upon consideration, I exercise my

discretion, pursuant to G.L. c. 211, § 4A, to order the

Superior Court case to be transferred to this court.

Thereafter, I hereby reserve and report the matter to

the full court for decision.

In addition to their briefs in the full court, the

parties are to prepare and file in the full court a

sufficiently comprehensive statement of agreed facts

that will enable the court to resolve the legal issues

raised in the pleadings; they may choose to submit the

statements of facts attached to their motion for

transfer, may modify that statement to include

identification of any specific orders they are

challenging with respect to any specific petitioner

individually, any specific types of businesses, or any

religious organizations, or may provide a new

statement.

The matter shall be scheduled for argument in

September, 2020. The parties shall consult with the

Clerk of the Supreme Judicial Court for the

Commonwealth regarding the designation of the

parties and the service and filing of briefs; no

extensions of time for filing are anticipated. This

40a

matter shall proceed in all respects in conformance

with the Massachusetts Rules of Appellate Procedure.

By the Court,

/s/ Barbara A. Lenk

Barbara A. Lenk

Associate Justice

Entered: July 10, 2020

41a

APPENDIX C

OFFICE OF THE GOVERNOR

COMMONWEALTH OF MASSACHUSETTS

STATE HOUSE• BOSTON, MA

02133

(617) 725-4000

CHARLES D. BAKER

KARYN E. POLITO

GOVERNOR

LIEUTENANT GOVERNOR

GOVERNOR'S DECLARATION OF EMERGENCY

WHEREAS, on January 30, 2020, the World Health Organization designated the 2019 novel

Coronavirus outbreak as a Public Health Emergency oflntemational Concern;

WHEREAS, on January 31, 2020, United States Health and Human Services Secretary Alex M.

Azar II declared a public health emergency for the entire United States to aid the nation's

healthcare community in responding to the 2019 novel Coronavirus ("COVID-19");

WHEREAS, the disease caused by the 2019 novel Coronavirus is a contagious, and at times

fatal, respiratory disease;

WHEREAS, symptoms ofCOVID-19 include fever, cough, and shortness of breath, and the

disease can spread from person to person via respiratory droplets produced when an infected

person coughs or sneezes;

WHEREAS, as of March 10, 2020, according to the Centers for Disease Control and Prevention

("CDC"), there are more than 114,000 confmned cases of COVID-19 worldwide, and over 4,000

of those cases have resulted in death;

WHEREAS, as of March 10, 2020, according to the CDC, there are more than 600 confirmed

cases ofCOVID-19 in the United States, and 25 of those cases have resulted in death;

WHEREAS, as of March 10, 2020, there are 91 presumed positive cases of COVID-19 in the

Commonwealth;

WHEREAS, both travel-related cases and community contact transmission of COVID-19 have

been detected in the Commonwealth and such transmission is expected to continue;

WHEREAS, the Massachusetts Department of Public Health has instituted a Public Health

Incident Management Team to manage the public health aspects of the incident;

WHEREAS, the worldwide outbreak ofCOVID-19 and the effects of its extreme risk ofpersonto-person transmission throughout the United States and the Commonwealth significantly affect

the life and health of our people, as well as the economy, and is a disaster that impacts the health,

security, and safety of the public;

PRJITT£D ON fu:CTCLED p"~ER

42a

WHEREAS, it is critical to take additional steps to prepare for, respond to, and mitigate the

spread ofCOVID-19 to protect the health and welfare of the people of the Commonwealth; and

WHEREAS, declaring a state of emergency will facilitate and expedite the use of

Commonwealth resources and deployment of federal and interstate resources to protect persons

from the impacts of the spread ofCOVID-19;

NOW THEREFORE, I, Charles D. Baker, Governor of the Commonwealth of Massachusetts,

pursuant to the powers provided by Chapter 639 of the Acts of 1950 and Section 2A of Chapter

17 of the General Laws, do hereby issue this proclamation that there now exists in the

Commonwealth of Massachusetts a STATE OF EMERGENCY.

Pursuant to the powers granted to the Governor in Sections 5, 6, 7, 8, and SA of Chapter 639 of

the Acts of 1950, as amended, and other provisions oflaw, I shall from time to time issue

recommendations, directives, and orders as circumstances may require.

This proclamation of a STATE OF EMERGENCY is effective immediately and shall remain in

effect until notice is given, pursuant to my judgment, that the STATE OF EMERGENCY no

longer exists.

Given in Boston on"J~J-,.0 PM this 10th day of

March two thousand and twenty.

CHARLES D. BAKER

GOVERNOR

Commonwealth of Massachusetts

43a

APPENDIX D

OFFICE OF THE GOVERNOR

COMMONWEALTH OF MASSACHUSETTS

STATE HOUSE • BOSTON, MA

02133

(617) 725-4000

CHARLES D. BAKER

KARYN E. POLITO

GOVERNOR

LIEUTENANT GOVERNOR

ORDER PROHIBITING GATHERINGS OF MORE THAN 250 PEOPLE

WHEREAS, on March 10, 2020, I, Charles D. Baker, Governor of the Commonwealth

of Massachusetts, acting pursuant to the powers provided by Chapter 639 of the Acts of 1950

and Section 2A of Chapter 17 of the General Laws, declared that there now exists in the

Commonwealth of Massachusetts a state of emergency due to the outbreak of the 2019 novel

Coronavirus ("COVID-19"); and

WHEREAS, the Federal Centers for Disease Control and Prevention ("CDC") and the

Massachusetts Department of Public Health ("DPH") recommend implementation of community

mitigation strategies, including the cancellation of large events. Additionally, the CDC and DPH

have advised high-risk individuals, including people over the age of 60, anyone with underlying

health conditions or a wealcened immune system, and pregnant women, to avoid large gatherings.

WHEREAS, sections 7, 8, and SA of Chapter 639 of the Acts of 1950 authorize the

Governor, during the effective period of a declared emergency, to exercise authority over public

assemblages as necessary to protect the health and safety of persons;

NOW, THEREFORE, I hereby order the following:

Gatherings of over 250 people are prohibited throughout the Commonwealth. Gatherings

subject to this Order include, without limitation, community, civic, public, leisure, faith-based

events, sporting events with spectators, concerts, conventions, fundraisers, parades, fairs,

festivals, and any similar event or activity that brings together 250 or more persons in a single

room or single space at the same time in a venue such as an auditorium, stadium, arena, large

conference room, meeting hall, theatre, or any other confined indoor or outdoor space. This

Order shall not apply to any municipal legislative body or to the General Court or to the

judiciary.

The Department of Public Health is directed to issue guidance, subject to my approval, to

implement the terms of this Order. The Department of Public Health, along with any board of

health or authorized agent pursuant to G. L. c. 111, §30, shall enforce this Order and if necessary

may do so with the assistance of State or municipal police. Violation of the terms of this this

PRIITTED ON REcYCLED PAPEfl

44a

Order or the guidance issued by the Department of Public Health may be result in penalties

pursuant to Section 8 of Chapter 631 of the Acts of 1950.

This Order is effective immediately and shall remain in effect until rescinded or until the

State of Emergency is terminated, whichever happens first.

Given in Boston a t ~ M this 13th day of

March, two thousand and twenty

~l)~

CHARLES D. BAKER

GOVERNOR

Commonwealth of Massachusetts

45a

OFFICE OF THE GOVERNOR

COMMONWEALTH OF MASSACHUSETTS

STATE HOUSE• BOSTON, MA

02133

(617) 725-4000

CHARLES D. BAKER

GOVERNOR

ORDER TEMPORARILY CLOSING ALL PUBLIC AND PRIVATE

ELEMENTARY AND SECONDARY SCHOOLS

WHEREAS, on March 10, 2020, I, Charles D. Baker, Governor of the Commonwealth

of Massachusetts, acting pursuant to the powers provided by Chapter 639 of the Acts of 1950

and Section 2A of Chapter 17 of the General Laws, declared that there now exists in the

Commonwealth of Massachusetts a state of emergency due to the outbreak of the 2019 novel

Coronavirus ("COVID-19"); and

WHEREAS, on March 11, the COVID-19 outbreak was characterized as a pandemic by

the World Health Organization;

WHEREAS, the number of presumptive positive and confirmed cases of COVID-19

continues to rise in the Commonwealth. As ofMarch 15, 2020, 164 cases ofCOVID-19 were

reported by the Department of Public Health, with 10 of the 14 counties in the Commonwealth

impacted;

WHEREAS, the Federal Centers for Disease Control and Prevention and the

Massachusetts Department of Public Health recommend implementation of community

mitigation strategies, including the cancellation of large events;

WHEREAS, the Department of Public Health is urging all residents of the

Commonwealth to practice social distancing when outside of their homes;

WHEREAS, sections 7, 8, and SA of Chapter 639 of the Acts of 1950 authorize the

Governor, during the effective period of a declared emergency, to exercise any and all authority

over persons and property necessary or expedient for meeting a state of emergency, including but

not limited to authority over public assemblages in order to protect the health and safety of

persons;

NOW, THEREFORE, I hereby order the following:

All public and private elementary and secondary (K-12) schools in the Commonwealth,

excluding residential and day schools for special needs students, shall suspend all normal, in-

PR[NTED ON

RE□tLED PAl'~R

46a

person instruction and other educational operations at the end of the school day on Monday,

March 16, 2020 and shall not re-open for normal operations before Monday, April 6, 2020.

Public school superintendents are directed to determine how to maintain the operation of

programs that provide food services and other essential, non-educational services to students and

families during the period in which this Order is in effect. Public school superintendents are

further directed to consult with their school boards, teaching staff, and other stakeholders how

best to provide student access to alternative learning opportunities during this period based on

considerations of equity and the availability of resources to support such efforts.

I hereby direct the Commissioner of the Department of Elementary and Secondary

Education to issue guidance, subject to my approval, to implement the terms of this Order and,

more broadly, to support public school systems in developing and implementing plans to assist

families and students in accessing alternative learning opportunities during the period in which

this Order is in effect.

The Department of Public Health and the Department of Elementary and Secondary

Education, along with any board of health or authorized agent pursuant to G. L. c. 111, § 30,

shall enforce this Order. In addition, I hereby direct the Commissioner of Public Health to act

under the authority of G. L. c. 17, § 2A to supplement the terms of this Order in the event she

detennines additional measures are required to ensure that the terms of this Order are observed.

/""v· lation of the terms of this this Order may result in penalties pursuant to Section 8 of Chapter

( 6 1 fthe Acts of 1950.

This Order is effective immediately and shall remain in effect until rescinded or until the

State of Emergency is terminated, whichever happens first.

Given in Boston atU; ( ~ this 15th day of

March, two thousand and twenty

~!J~

CHARLES D. BAKER

GOVERNOR

Commonwealth of Massachusetts

47a

OFFICE OF THE GOVERNOR

COMMONWEALTH OF MASSACHUSETTS

STATE HOUSE• BOSTON, MA

02133

(617) 725-4000

CHARLES D. BAKER

KARYN E. POLITO

GOVERNOR

LIEUTENANT GOVERNOR

ORDER PROHIBITING GATHERINGS OF MORE THAN 25 PEOPLE AND

ON-PREMISES CONSUMPTION OF FOOD OR DRINK

WHEREAS, on March 10, 2020, I, Charles D. Baker, Governor of the Commonwealth

of Massachusetts, acting pursuant to the powers provided by Chapter 639 of the Acts of 1950

and Section 2A of Chapter 17 of the General Laws, declared that there now exists in the

Commonwealth of Massachusetts a state of emergency due to the outbreak of the 2019 novel

Coronavirus ("COVID-19");

WHEREAS, on March 11, 2020, the COVID-19 outbreak was characterized as a

pandemic by the World Health Organization;

WHEREAS, the number of presumptive positive and confirmed cases of COVID-19

continues to rise in the Commonwealth. As of March 15, 2020, 164 cases ofCOVID-19 were

reported by the Department of Public Health, with IO of the 14 counties in the Commonwealth

impacted;

WHEREAS, the Federal Centers for Disease Control and Prevention and the

Massachusetts Department of Public Health recommend implementation of community

mitigation strategies, including the cancellation of large events;

WHEREAS, the Department of Public Health is urging all residents of the

Commonwealth to practice social distancing when outside of their homes; and

WHEREAS, sections 7, 8, and SA of Chapter 639 of the Acts of 1950 authorize the

Governor, during the effective period of a declared emergency, to exercise any and all authority

over persons and property necessary or expedient for meeting a state of emergency, including but

not limited to authority over public assemblages in order to protect the health and safety of

persons;

NOW, THEREFORE, I hereby order the following:

48a

Gatherings of over 25 people are prohibited throughout the Commonwealth. Gatherings

subject to this Order include, without limitation, community, civic, public, leisure, faith-based

events, sporting events with spectators, concerts, conventions, fundraisers, parades, fairs,

festivals, and any similar event or activity that brings together 25 or more persons in a single

room or single space at the same time in a venue such as an auditorium, stadium, arena, large

conference room, meeting hall, theatre, gymnasium, fitness center, private club, or any other

confined indoor or outdoor space.

Any restaurant, bar, or establishment that offers food or drink shall not permit onpremises consumption of food or drink; provided that such establishments may continue to offer

food for take-out and by delivery provided that they follow the social distancing protocols set

forth in Department of Public Health guidance.

This Order shall not apply to any municipal legislative body or to the General Court or to

the judiciary.

The Commissioner of Public Health is directed to issue guidance, subject to my approval,

to implement the terms of this Order. The Department of Public Health, along with any board of

health or authorized agent pursuant to G.L. c. 111, §30, shall enforce this Order and if necessary

may do so with the assistance of State or municipal police. Violation of the terms of this Order

or the guidance issuep/-bthe Commissioner of Public Health may result in penalties pursuant to

Section 8 of Chapter 1 qfthe Acts of 1950.

'~-·-/

This Order is effective March 17, 2020 and shall remain in effect through April 5, 2020

unless further extended. On the effective date of this Order, the March 13, 2020 Order

Prohibiting Gatherings of More than 250 People is hereby rescinded.

6 f

O:rt;M

Given in Boston at

this 15th day of

March, two thousand and twenty

CHARLES D. BAKER

GOVERNOR

Commonwealth of Massachusetts

49a

OFFICE OF THE GOVERNOR

COMMONWEAL TH OF MASSACHUSETTS

STATE HOUSE • BOSTON, MA

02133

(617) 725-4000

CHARLES D. BAKER

KARYN E. POLITO

GOVERNOR

LIEUTENANT GOVERNOR

ORDER TEMPORARILY CLOSING ALL CHILD CARE PROGRAMS

AND AUTHORIZING THE TEMPORARY CREATION AND OPERATION

OF EMERGENCY CHILD CARE PROGRAMS

WHEREAS, on March 10, 2020, I, Charles D. Baker, Governor of the Commonwealth

of Massachusetts, acting pursuant to the powers provided by Chapter 639 of the Acts of 1950

and Section 2A of Chapter 17 of the General Laws, declared that there now exists in the

Commonwealth of Massachusetts a state of emergency due to the outbreak of the 2019 novel

Coronavirus ("COVID-19");

WHEREAS, on March 11, 2020, the COVID-19 outbreak was characterized as a

pandemic by the World Health Organization;

WHEREAS, the number of presumptive positive and confirmed cases ofCOVID-19

continues to rise in the Commonwealth. As of March 17, 2020, 218 cases of COVID-19 were

reported by the Department of Public Health, with 10 of the 14 counties in the Commonwealth

impacted;

WHEREAS, the Federal Centers for Disease Control and Prevention and the

Massachusetts Department of Public Health recommend implementation of community

mitigation strategies, including the cancellation of large events;

WHEREAS, the Department of Public Health is urging all residents of the

Commonwealth to practice social distancing when outside of their homes;

WHEREAS, maintaining the availability of first-responders, health care workers, and

others who help maintain the health, safety, and welfare of the Commonwealth's residents is

crucial to ensuring a robust, consistent, and effective response to this pandemic. Accordingly,

establishing measures to address the child care needs of those workers is of critical importance;

WHEREAS, sections 7, 8, and 8A of Chapter 639 of the Acts of 1950 authorize the

Governor, during the effective period of a declared emergency, to exercise any and all authority

over persons and property necessary or expedient for meeting a state of emergency, including but

P1mmm ON REcYClEO PAPES;

50a

not limited to authority over public assemblages in order to protect the health and safety of

persons, over educational facilities that are supported in whole or in part by public funds, so as to

extend those facilities' benefits and availability, and over variances of the terms and conditions

of licenses issued by the Commonwealth or any of its agencies;

NOW, THEREFORE, I hereby order the following:

(1) Temporary Closing of Child Care Programs

All licensed, approved, or exempt child care programs in the Commonwealth shall

suspend all normal operations by the end of the day on March 22, 2020 and shall not re-open

before Monday, April 6, 2020 unless under approval granted by the emergency program

authorized in section (2) below.

(2) Emergency Child Care Programs

The Department of Early Education and Care ("EEC"), acting through its Commissioner

and subject to my approval, is hereby authorized to issue policies, procedures, requirements, and

guidance to provide for the creation, approval, operation, staffing, monitoring, inspection,

investigation, oversight, and closure of emergency child care programs, and to provide funding

for such programs. EEC shall have access to and use of all available Criminal Offender Record

Information, juvenile, and sealed records, and Sex Offender Registry Information in order to

review and approve the staffing of emergency child care programs. Vulnerable children and

children of families who work to maintain the health, safety, and welfare of all Commonwealth

residents shall receive priority access to such emergency child care programs.

EEC, through its Commissioner, is hereby further authorized to temporarily suspend or

modify any existing regulation applicable to licensed, approved, or exempt child care programs

to the extent necessary to provide for the creation, operation, and sufficient availability of

emergency child care programs consistent with this Order.

This Order is effective immediately and shall remain in effect until rescinded or until the

State of Emergency is terminated, whichever happens first.

51a

Given in Boston at): 6>~M this 18th day of

March, two thousand and twenty

~});~

CHARLES D. BAKER

GOVERNOR

Commonwealth of Massachusetts

52a

OFFICE OF THE GOVERNOR

COMMONWEALTH OF MASSACHUSETTS

STATE HOUSE• BOSTON, MA

02133

(617) 725-4000

CHARLES D. BAKER

KARYN E. POLITO

GOVERNOR

LIEUTENANT GOVERNOR

ORDER ASSURING CONTINUED OPERATION OF ESSENTIAL SERVICES

IN THE COMMONWEALTH, CLOSING CERTAIN WORKPLACES,

AND PROHIBITING GATHERINGS OF MORE THAN 10 PEOPLE

COVID-19 Order No. 13

WHEREAS, on March 10, 2020, I, Charles D. Baker, Governor of the Commonwealth

of Massachusetts, acting pursuant to the powers provided by Chapter 639 of the Acts of 1950

and Section 2A of Chapter 17 of the General Laws, declared that there now exists in the

Commonwealth of Massachusetts a state of emergency due to the outbreak of the 2019 novel

Coronavirus ("COVID-19");

WHEREAS, on March 11, 2020, the COVID-19 outbreak was characterized as a

pandemic by the World Health Organization;

WHEREAS, the number of presumptive positive and confirmed cases of COVID-19

continues to rise exponentially in the Commonwealth. As of March 22, 2020, the Department of

Public Health had reported 646 cases ofCOVID-19, including 5 deaths, with 13 of the 14

counties in the Commonwealth impacted;

WHEREAS, the Department of Public Health is urging all residents of the

Commonwealth to limit activities outside of the home and to practice social distancing at all

times, both inside and outside of the home to limit the spread of this highly contagious and

potentially deadly virus;

WHEREAS, on March 19, 2020, the Federal Cybersecurity and Infrastructure Security

Agency issued guidance to assist States that identifies 14 critical infrastructure sectors whose

workers provide services and functions that are essential to maintain in order to support a strong

response to the COVID-19 pandemic;

WHEREAS, as Governor, I have identified additional services and functions that

likewise are essential to promote the public health and welfare of the Commonwealth, and

(i} Prumiso ON R£c,·c,.oo l'Ar·rn

53a

therefore it is imperative to ensure that workers providing critical services and functions in these

State and Federally designated sectors may continue to work to ensure community resilience and

continuity of response efforts; and

WHEREAS, sections 7, 8, and 8A of Chapter 639 of the Acts of 1950 authorize the

Governor, during the effective period of a declared emergency, to exercise any and all authority

over persons and property necessary or expedient for meeting a state of emergency, including but

not limited to authority over public assemblages in order to protect the health and safety of

persons, regulating the sale of articles of food and household articles, and policing, protection,

and preservation of public and private property;

NOW, THEREFORE, in order to minimize all unnecessary activities outside of the

home during the state of emergency, I hereby order the following:

Maintaining Operation ofCOVID-19 Essential Services and Workforces

The production and service sectors identified in Exhibit A are hereby designated as

"COVID-19 Essential Services." The workforces engaged and working in these production and

service sectors are hereby designated as "COVID-19 Essential Workforces." I shall amend and

publish updates to Exhibit A as I determine necessary in response to conditions as they develop.

Businesses and other organizations that provide the services and functions identified as

COVID-19 Essential Services in Exhibit A are urged to continue operations during the state of

emergency, but to do so with allowance for social distancing protocols consistent with guidance

provided by the Department of Public Health.

Restaurants, bars, and other retail establishments that sell food and beverage products to

the public provide COVID-19 Essential Services and are designated as such in Exhibit A. These

establishments are therefore encouraged to continue to offer food and beverages for take-out and

by delivery provided that they follow the social distancing protocols set forth in Department of

Public Health guidance. Restaurants, bars, or other establishments that offer food or beverages

to the public shall not permit on-premises consumption of food or beverages.

Temporary Closing of Other Businesses and Organizations

All businesses and other organizations that do not provide COVID-19 Essential Services

shall close their physical workplaces and facilities ("brick-and-mortar premises") to workers,

customers, and the public as of 12:00 noon on March 24, 2020 and shall not re-open to workers,

customers, or the public before 12:00 noon on April 7, 2020. Churches, temples, mosques, and

other places of worship shall not be required to close their brick and mortar premises to workers

or the public; provided, however, that such institutions shall be required to comply with all

limitations on gatherings established in section 3 below.

54a

Businesses and other organizations that do not provide COVID-19 Essential Services are

encouraged to continue operations where they are able to operate through remote means that do

not require workers, customers, or the public to enter or appear at the brick-and-mortar premises

closed by this Order.

Limitations on Gatherings

Gatherings of more than 10 people are prohibited throughout the Commonwealth.

Gatherings subject to this Order include, without limitation, community, civic, public, leisure,

faith-based, or sporting events, concerts, conferences, conventions, fundraisers, parades, fairs,

festivals, weddings, funerals, and any similar event or activity that brings together more than 10

persons in any confined indoor or outdoor space. This limitation shall not apply to the

operations or activities of any business or organization in its provision or delivery of COVID-19

Essential Services.

This Order does not prohibit gatherings of more than 10 people in an unenclosed, outdoor

space such as a park, athletic field, or parking lot.

Athletic and recreational activities that bring participants into close, physical contact are

prohibited even when involving 10 or fewer people and regardless of where conducted.

Exceptions

(a) This Order shall not apply to any municipal legislative body or to the General Court

or to the Judiciary.

(b) This Order shall not apply to residential schools for special needs students. This

Order also does not apply to public and private elementary and secondary (K-12) schools in the

Commonwealth, which are subject to the March 15, 2020 Order Temporarily Closing All Public

and Private Elementary and Secondary Schools, as may be subsequently amended, which

suspended all normal, in-person instruction.

Commonwealth, which are subject to the March 18, 2020 Order Temporarily Closing All Child

Care Programs and Authorizing the Temporary Creation and Operation of Emergency Child

Care Programs, as may be subsequently amended.

Implementing Guidance and Enforcement

The Commissioner of Public Health is directed to issue guidance ("DPH Guidance"),

subject to my approval, to implement the terms of this Order. The DPH Guidance shall include a

requirement that grocery stores and other retailers with substantial retail grocery sales establish

special limited access hours during which elderly and other vulnerable populations may have

exclusive access to make grocery purchases.

55a

The Department of Public Health, along with any board of health or authorized agent

pursuant to G. L. c. 111, § 30, shall enforce this Order and if necessary may do so with the

assistance of State or municipal police. Violation of the terms of this Order or the DPH

Guidance may result in a criminal penalty pursuant to Section 8 of Chapter 639 of the Acts of

1950 or a civil fine ofup to $300 per violation, in the manner provided for non-criminal

disposition of violations of municipal by-law, ordinance, rule, or regulation pursuant to G. L.

c. 40, § 21D. A criminal complaint for violation of or a motion for an injunction to enforce this

Order or the DPH Guidance shall be filed in the district court with jurisdiction for the

municipality in which the violation has been charged.

In addition, I hereby direct the Commissioner of Public Health to act under the authority

of G. L. c. 17, § 2A and G. L. c. 111, § 6 or any other appropriate authority to supplement the

terms of this Order in the event she determines additional measures are required to ensure that

the terms of this Order are observed.

This Order 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. With respect to work and travel in particular, any order or rule issued by a municipality is

hereby made inoperative to the extent: (1) such municipal order or rule will or might interfere

with provisions of this Order ensuring the continued operation of COVID-19 Essential Services;

or (2) such municipal order or rule will or might interfere with the free travel anywhere within

the Commonwealth of any person who is a member of any COVID-19 Essential Workforce

where such travel is made in connection with the ongoing operation of COVID-19 Essential

Services.

This Order rescinds and revokes the Order Prohibiting Gatherings of More than 25

People and On-Premises Consumption of Food or Drink, issued March 15, 2020.

If any provision of this Order or the application thereof to any person or entity or

circumstance is determined to be invalid by a court of competent jurisdiction, such judgment

shall not affect or impair the validity of the other provisions of this Order or the application

thereof to other persons, entities, and circumstances.

56a

This Order shall be effective at 12:00 noon March 24, 2020 and shall remain in effect

through 12:00 noon on April 7, 2020 unless further extended.

Given in Boston at G/, .' ):(~M this 23rd day

of March, two thousand and twenty

CHARLES D. BAKER

GOVERNOR

Commonwealth of Massachusetts

57a

COVID-19 Essential Services

COVID-19 ESSENTIAL SERVICES

EXHIBIT A OF THE ORDER OF THE GOVERNOR ASSURING CONTINUED OPERATION OF ESSENTIAL

SERVICES IN THE COMMONWEALTH, CLOSING CERTAIN WORKPLACES AND PROHIBITING GATHERINGS

OF MORE THAN 10 PEOPLE

March 23, 2020

Governor Charlie Baker issued an emergency order requiring all businesses and organizations that do

not provide “COVID-19 Essential Services” to close their physical workplaces and facilities to workers,

customers and the public as of Tuesday, March 24th at noon until Tuesday, April 7th at noon. These

businesses are encouraged to continue operations remotely.

The Baker-Polito Administration issued a list of designated businesses and other organizations that

provide essential services and workforces related to COVID-19 that shall continue to operate brick and

mortar facilities during this two-week time period. This list is based on federal guidance and amended to

reflect the needs of Massachusetts’ unique economy. While these businesses are designated as

essential, they are urged to follow social distancing protocols for workers in accordance with guidance

from the Department of Public Health.

Businesses and organizations not on the list of essential services are encouraged to continue operations

through remote means that do not require workers, customers, or the public to enter or appear at the

brick-and-mortar premises closed by the order.

Restaurants, bars, and other establishments that sell food and beverage products to the public are

encouraged to continue to offer food for take-out and by delivery if they follow the social distancing

protocols set forth in Department of Public Health guidance continue operations. On-premises

consumption of food or drink is prohibited.

HEALTHCARE / PUBLIC HEALTH / HUMAN SERVICES

• Workers providing COVID-19 testing; Workers that perform critical clinical research needed for

COVID-19 response

• Medical Professionals and caregivers (e.g., physicians, dentists, psychologists, mid-level

practitioners, nurses and assistants, infection control and quality assurance personnel,

pharmacists, physical and occupational therapists and assistants, social workers, speech

pathologists and diagnostic and therapeutic technicians and technologists, other providers of

mental and behavioral health care, personal care attendants, home health aides and home care

workers)

• Hospital and laboratory personnel (including accounting, administrative, admitting and

discharge, engineering, epidemiological, source plasma and blood donation, food service,

housekeeping, medical records, information technology and operational technology,

nutritionists, sanitarians, respiratory therapists, etc.)

• Workers in other medical facilities (including Ambulatory Health and Surgical, Blood Banks,

Medical Clinics, Community Mental Health Centers, Methadone/OBOT Clinics, 24 hour

Diversionary and Residential Behavioral Health Providers, Comprehensive Outpatient

rehabilitation, End Stage Renal Disease, Health Departments, Home Health care, Hospices,

Hospitals, Nursing Facilities, Rest Homes, Assisted Living Residences, Organ Pharmacies,

March 23, 2020

58a

COVID-19 Essential Services

•

Procurement Organizations, Psychiatric Residential, Residential Treatment Schools, Rural Health

Clinics and Federally Qualified Health Center s and Community Health Centers, State Hospitals,

and licensed medical marijuana retailers)

Workers in other 24/7 community resident services serving children and youth, and individuals

with developmental, intellectual, physical and/or cognitive disabilities

Manufacturers, technicians, logistics and warehouse operators, and distributors of or necessary

to the supply chain of medical equipment, personal protective equipment (PPE), medical gases,

pharmaceuticals, blood and blood products, vaccines, testing materials, laboratory supplies,

cleaning, sanitizing, disinfecting or sterilization supplies, and tissue and paper towel products

Public health / community health workers, including those who compile, model, analyze and

communicate public health information

Blood and plasma donors and the employees of the organizations that operate and manage

related activities

Workers that manage health plans, billing, and health information, who cannot practically work

remotely

Workers who conduct community-based public health functions, conducting epidemiologic

surveillance, compiling, analyzing and communicating public health information, who cannot

practically work remotely

Workers performing cybersecurity functions at healthcare and public health facilities, who

cannot practically work remotely

Workers conducting research critical to COVID-19 response

Workers performing security, incident management, and emergency operations functions at or

on behalf of healthcare entities including healthcare coalitions, who cannot practically work

remotely

Workers who support food, shelter, and social services, and other necessities of life for

economically disadvantaged or otherwise needy individuals, such as those residing in shelters

Pharmacy employees necessary for filling prescriptions

Workers performing mortuary services and workers at funeral homes, crematoriums, and

cemeteries

Workers who coordinate with other organizations to ensure the proper recovery, handling,

identification, transportation, tracking, storage, and disposal of human remains and personal

effects; certify cause of death; and facilitate access to mental/behavioral health services to the

family members, responders, and survivors of an incident

LAW ENFORCEMENT, PUBLIC SAFETY, FIRST RESPONDERS

• Personnel in emergency management, law enforcement, Emergency Management Systems, fire,

and corrections, including front line and management required to maintain operations

• Emergency Medical Technicians

• 911 call center employees, including telecommunicators, dispatchers and managers

• Fusion Center employees

• Hazardous material responders from government and the private sector.

• Workers – including contracted vendors -- who maintain digital systems infrastructure

supporting law enforcement and emergency service operations.

FOOD AND AGRICULTURE

• Workers supporting groceries, pharmacies and other retail, including farmers markets and farm

stands, that sells food and beverage products, including liquor stores

• Restaurant carry-out and quick serve food operations - Carry-out and delivery food employees

March 23, 2020

59a

COVID-19 Essential Services

•

Food manufacturer employees and their supplier employees—to include those employed in

food processing (packers, meat processing, cheese plants, milk plants, produce, etc.) facilities;

livestock, poultry, seafood slaughter facilities; pet and animal feed processing facilities; human

food facilities producing by-products for animal food; beverage production facilities; and the

production of food packaging

Farm workers to include those employed in animal food, feed, and ingredient production,

packaging, and distribution; manufacturing, packaging, and distribution of veterinary drugs;

truck delivery and transport; farm and fishery labor needed to produce our food supply

domestically

Farm workers and support service workers to include those who field crops; commodity

inspection; fuel ethanol facilities; storage facilities; and other agricultural inputs

Workers supporting the seafood and fishing industry

Employees and firms supporting food, feed, and beverage distribution, including warehouse

workers, vendor-managed inventory controllers and blockchain managers

Workers supporting the sanitation of all food manufacturing processes and operations from

wholesale to retail

Company cafeterias - in-plant cafeterias used to feed employees; food service workers in

residential schools with students who are unable to leave campus

Workers in food testing labs in private industries and in institutions of higher education

Workers essential for assistance programs and government payments

Employees of companies engaged in the production of chemicals, medicines, vaccines, and

other substances used by the food and agriculture industry, including pesticides, herbicides,

fertilizers, minerals, enrichments, and other agricultural production aids

Animal agriculture workers to include those employed in veterinary health; manufacturing and

distribution of animal medical materials, animal vaccines, animal drugs, feed ingredients, feed,

and bedding, etc.; transportation of live animals, animal medical materials; transportation of

deceased animals for disposal; raising of animals for food; animal production operations;

slaughter and packing plants and associated regulatory and government workforce

Organizations and workers responsible for the care and custody of animals, pets and livestock

Workers who support the manufacture and distribution of forest products, including, but not

limited to timber, paper, and other wood products

Employees engaged in the manufacture and maintenance of equipment and other infrastructure

necessary to agricultural production and distribution

ENERGY

Electricity industry:

• Workers who maintain, ensure, or restore the reliable generation, transmission, and distribution

of electric power, including call centers, utility workers, reliability engineers and fleet

maintenance technicians

• Workers needed for safe and secure operations at nuclear generation

• Workers at generation, transmission and electric blackstart facilities

• Workers at Reliability Coordinator (RC), Balancing Authorities (BA), and primary and backup

Control Centers (CC), including but not limited to independent system operators, regional

transmission organizations, and balancing authorities

• Mutual assistance personnel

March 23, 2020

60a

COVID-19 Essential Services

•

IT and OT technology staff – for EMS (Energy Management Systems) and Supervisory Control

and Data Acquisition (SCADA) systems, and utility data centers; Cybersecurity engineers;

cybersecurity risk management

Vegetation management crews and traffic workers who support

Environmental remediation/monitoring technicians

Instrumentation, protection, and control technicians

Petroleum workers:

• Petroleum product storage, pipeline, marine transport, terminals, rail transport, road transport

• Crude oil storage facilities, pipeline, and marine transport

• Petroleum refinery facilities

• Petroleum security operations center employees and workers who support emergency response

services

• Petroleum operations control rooms/centers

• Petroleum drilling, extraction, production, processing, refining, terminal operations,

transporting, and retail for use as end-use fuels or feedstocks for chemical manufacturing

• Onshore and offshore operations for maintenance and emergency response

• Retail fuel centers such as gas stations and truck stops, and the distribution systems that

support them

Natural and propane gas workers:

• Natural gas transmission and distribution pipelines, including compressor stations, and road

transport

• Underground storage of natural gas

• Natural gas processing plants, and those that deal with natural gas liquids

• Liquefied Natural Gas (LNG) facilities

• Natural gas security operations center, natural gas operations dispatch and control

rooms/centers natural gas emergency response and customer emergencies, including natural

gas leak calls

• Drilling, production, processing, refining, and transporting natural gas for use as end-use fuels,

feedstocks for chemical manufacturing, or use in electricity generation

• Propane gas dispatch and control rooms and emergency response and customer emergencies,

including propane leak calls

• Propane gas service maintenance and restoration, including call centers

• Processing, refining, and transporting natural liquids, including propane gas, for use as end-use

fuels or feedstocks for chemical manufacturing

• Propane gas storage, transmission, and distribution centers

Steam workers:

• Workers who support steam distribution companies’ provision of district heating and any

electric generation

• Workers who support steam distribution companies’ dispatch and control rooms and

emergency response and customer emergencies, including steam leak calls

• Workers who support steam distribution companies’ service maintenance and restoration,

including call centers

• Workers who support steam distribution companies’ storage, transmission, and distribution

centers

March 23, 2020

61a

COVID-19 Essential Services

WATER AND WASTEWATER

Employees needed to operate and maintain public and private drinking water and wastewater/drainage

infrastructure, including:

• Operational staff at water authorities

• Operational staff at community water systems

• Operational staff at wastewater treatment facilities

• Workers repairing water and wastewater conveyances and performing required sampling or

monitoring

• Operational staff for water distribution and testing

• Operational staff at wastewater collection facilities

• Operational staff and technical support for SCADA Control systems

• Chemical disinfectant suppliers for wastewater and personnel protection

• Workers that maintain digital systems infrastructure supporting water and wastewater

operations

TRANSPORTATION AND LOGISTICS

• Employees supporting or enabling transportation functions, including dispatchers, maintenance

and repair technicians, warehouse workers, truck stop and rest area workers, and workers that

maintain and inspect infrastructure (including those that require cross-border travel)

• Employees of firms providing services that enable logistics operations, including cooling, storing,

packaging, and distributing products for wholesale or retail sale or use

• Mass transit and passenger rail workers, including contracted vendors providing transportation

and maintenance services to public transit authorities

• Workers critical to operating rental car companies and Transportation Network Companies

(TNCs) that facilitate continuity of operations for essential workforces, and other essential travel

• Workers responsible for operating dispatching passenger, commuter and freight trains and

public transportation and buses and maintaining rail and transit infrastructure and equipment

• Maritime transportation workers - port workers, mariners, equipment operators

• Truck drivers who haul hazardous and waste materials to support critical infrastructure,

capabilities, functions, and services

• Automotive repair and maintenance facilities

• Workers who respond to and clear traffic crashes, including contracted vendors and dispatchers

• Manufacturers and distributors (to include service centers and related operations) of packaging

materials, pallets, crates, containers, and other supplies needed to support manufacturing,

packaging staging and distribution operations

• Postal and shipping workers, to include private companies

• Workers who support moving and storage services

• Employees who repair and maintain vehicles, aircraft, rail equipment, marine vessels, and the

equipment and infrastructure that enables operations that encompass movement of cargo and

passengers

• Air transportation employees, including air traffic controllers, ramp personnel, aviation security,

and aviation management and other workers – including contracted vendors – providing

services for air passengers

• Workers who support the maintenance and operation of cargo by air transportation, including

flight crews, maintenance, airport operations, and other on- and off- airport facilities workers

March 23, 2020

62a

COVID-19 Essential Services

PUBLIC WORKS

• Workers who support the operation, inspection, and maintenance of essential dams, locks and

levees

• Workers who support the operation, inspection, and maintenance of essential public works

facilities and operations, including roads and bridges, water and sewer main breaks, fleet

maintenance personnel, construction of critical or strategic infrastructure, traffic signal

maintenance, emergency location services for buried utilities, maintenance of digital systems

infrastructure supporting public works operations, and other emergent issues

• Workers – including contracted vendors – involved in the construction of critical or strategic

infrastructure including public works construction, airport operations, water, sewer, gas,

electrical, nuclear, oil refining and other critical energy services, roads and highways, public

transportation, solid waste collection and removal, and internet, and telecommunications

systems (including the provision of essential global, national, and local infrastructure for

computing services)

• 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

• Support, such as road and line clearing and utility relocation, to ensure the availability of needed

facilities, transportation, energy and communications

• Support to ensure the effective removal, storage, and disposal of residential and commercial

solid waste and hazardous waste

• Licensed site clean-up professionals and other workers addressing hazardous spills, waste sites,

and remediation.

• Workers who support the operation, maintenance and public safety of state parks, forests,

wildlife management areas, water supply protection lands, and other critical natural resources.

• Workers who support storm clean-up operations (e.g., foresters).

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,

March 23, 2020

63a

COVID-19 Essential Services

•

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, SLTT 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

OTHER COMMUNITY-BASED ESSENTIAL FUNCTIONS AND GOVERNMENT OPERATIONS

• 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

• Elections personnel

• Federal, State, and Local, Tribal, and Territorial employees who support Mission Essential

Functions and communications networks

• Trade Officials (FTA negotiators; international data flow administrators)

• Weather forecasters

• Workers that maintain digital systems infrastructure supporting other critical government

operations

• Workers at operations centers necessary to maintain other essential functions

• Workers who support necessary credentialing, vetting and licensing operations for

transportation workers including holders of Commercial Drivers Licenses

• Workers who are critical to facilitating trade in support of the national, state and local

emergency response supply chain

• Educators and staff supporting public and private emergency childcare programs, residential

schools for students with disabilities, K-12 schools, colleges, and universities for purposes of

facilitating distance learning, provision of school meals, or performing other essential student

support functions, if operating under rules for social distancing

March 23, 2020

64a

COVID-19 Essential Services

•

Hotel workers

Critical government workers, as defined by the employer and consistent with Continuity of

Operations Plans

Construction Workers who support the construction, operation, inspection, and maintenance of

construction sites and construction projects (including housing construction)

Workers that provide services for or determine eligibility for public benefits such as subsidized

health care, food and feeding programs, residential and congregate care programs, shelter, inhome supportive services, child welfare, juvenile justice programs, adult protective services and

social services, and other necessities of life for economically disadvantaged or otherwise needy

individuals (including family members)

Workers in sober homes

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

Commercial retail stores that supply essential sectors, including convenience stores, pet supply

stores, auto supplies and repair, hardware and home improvement, and home appliance

retailers

Laundromats and laundry services

Workers and instructors supporting academies and training facilities and courses for the

purpose of graduating students and cadets that comprise the essential workforce for all

identified critical sectors

Workers at places of worship

CRITICAL MANUFACTURING

• Workers necessary for the manufacturing of materials and products needed for medical supply

chains including personal protective equipment and hygiene products, transportation, energy,

communications, food and agriculture, chemical manufacturing, nuclear facilities, the operation

of dams, water and wastewater treatment, emergency services, and the defense industrial base.

HAZARDOUS MATERIALS

• Workers at nuclear facilities, workers managing medical waste, workers managing waste from

pharmaceuticals and medical material production, and workers at laboratories processing test

kits

• Workers who support hazardous materials response and cleanup

• Workers who maintain digital systems infrastructure supporting hazardous materials

management operations

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

March 23, 2020

65a

COVID-19 Essential Services

CHEMICAL

• Workers supporting the chemical and industrial gas supply chains, including workers at chemical

manufacturing plants, workers in laboratories, workers at distribution facilities, workers who

transport basic raw chemical materials to the producers of industrial and consumer goods,

including hand sanitizers, food and food additives, pharmaceuticals, textiles, and paper

products.

• Workers supporting the safe transportation of chemicals, including those supporting tank truck

cleaning facilities and workers who manufacture packaging items

• Workers supporting the production of protective cleaning and medical solutions, personal

protective equipment, and packaging that prevents the contamination of food, water, medicine,

among others essential products

• Workers supporting the operation and maintenance of facilities (particularly those with high risk

chemicals and/or sites that cannot be shut down) whose work cannot be done remotely and

requires the presence of highly trained personnel to ensure safe operations, including plant

contract workers who provide inspections

• Workers who support the production and transportation of chlorine and alkali manufacturing,

single-use plastics, and packaging that prevents the contamination or supports the continued

manufacture of food, water, medicine, and other essential products, including glass container

manufacturing

DEFENSE INDUSTRIAL BASE

• Workers who support the essential services required to meet national security commitments to

the federal government and U.S. Military. These individuals, include but are not limited to,

aerospace; mechanical and software engineers, manufacturing/production workers; IT support;

security staff; security personnel; intelligence support, aircraft and weapon system mechanics

and maintainers

• Personnel working for companies, and their subcontractors, who perform under contract to the

Department of Defense providing materials and services to the Department of Defense, and

government-owned/contractor-operated and government-owned/government-operated

facilities

If the function of your business is not listed above, but you believe that it is essential or it is an entity

providing essential services or functions, you may request designation as an essential business.

Requests by businesses to be designated an essential function should only be made if they are NOT

covered by the guidance.

To request designation as an essential business, please click here:

https://www.mass.gov/forms/essential-service-designation-request

Any questions can be directed to covid19.biz@mass.gov.

March 23, 2020

66a

OFFICE OF THE GOVERNOR

COMMONWEALTH OF MASSACHUSETTS

STATE HOUSE• BOSTON, MA

02133

(617) 725-4000

CHARLES D. BAKER

KARYN E. POLITO

GOVERNOR

LIEUTENANT GOVERNOR

ORDER EXTENDING THE TEMPORARY CLOSING OF ALL

NON-EMERGENCY CHILD CARE PROGRAMS

COVID-19 Order 15

WHEREAS, on March 10, 2020, I, Charles D. Baker, Governor of the Commonwealth

of Massachusetts, acting pursuant to the powers provided by Chapter 639 of the Acts of 1950

and Section 2A of Chapter 17 of the General Laws, declared that there now exists in the

Commonwealth of Massachusetts a state of emergency due to the outbreak of the 2019 novel

Coronavirus ("COVID-19");

WHEREAS, on March 11, 2020, the COVID-19 outbreak was characterized as a

pandemic by the World Health Organization;

WHEREAS, in response to the pandemic, on March 18, 2020, I issued an Order

requiring all child care programs in the Commonwealth to suspend normal operations by the end

of the day on March 22, 2020 and not to re-open before Monday, April 6, 2020, and further

authorizing the Department of Early Education and Care to establish emergency child care

programs;

WHEREAS, the number of presumptive positive and confirmed cases ofCOVID-19

continues to rise exponentially in the Commonwealth. As of March 24, 2020, 1,159 cases of

COVID-19 were reported by the Department of Public Health, including 11 deaths; and

WHEREAS, sections 7, 8, and 8A of Chapter 639 of the Acts of 1950 authorize the

Governor, during the effective period of a declared emergency, to exercise any and all authority

over persons and property necessary or expedient for meeting a state of emergency, including but

not limited to authority over public assemblages in order to protect the health and safety of

persons, over educational facilities that are supported in whole or in part by public funds, so as to

extend those facilities' benefits and availability, and over variances of the terms and conditions

of licenses issued by the Commonwealth or any of its agencies;

NOW, THEREFORE, I hereby order the following:

PRl~7ED ON RECYCLED PAPER

67a

All licensed, approved, or exempt child care programs in the Commonwealth shall not reopen for normal operations before Monday, May 4, 2020, unless authorized by the Department

of Early Education and Care to continue operations as emergency programs. This directive

supersedes the provision of the March 18, 2020 Order establishing an earlier date for re-opening.

The Department of Public Health and the Department of Early Education and Care, along

with any board of health or authorized agent pursuant to G. L. c. 111, § 30, shall enforce this

Order. In addition, I hereby direct the Commissioner of Public Health to act under the authority

of G. L. c. 17, § 2A to supplement the terms of this Order in the event she determines additional

measures are required to ensure that the terms of this Order are observed. Violation of the terms

of this Order may result in penalties pursuant to Section 8 of Chapter 639 of the Acts of 1950.

This Order is effective immediately and shall remain in effect until May 4, 2020 unless

further extended.

Given in Boston at ~ jpM this 25th day of

March, two thousand and twenty

CHARLES D. BAKER

GOVERNOR

Commonwealth of Massachusetts

68a

OFFICE OF THE GOVERNOR

COMMONWEALTH OF MASSACHUSETTS

STATE HOUSE• BOSTON, MA

02133

(617) 725-4000

CHARLES D. BAKER

KARYN E. POLITO

GOVERNOR

LIEUTENANT GOVERNOR

ORDER EXTENDING THE TEMPORARY CLOSURE OF ALL PUBLIC AND

PRIVATE ELEMENTARY AND SECONDARY SCHOOLS

COVID-19 Order 16

WHEREAS, on March 10, 2020, I, Charles D. Baker, Governor of the Commonwealth

of Massachusetts, acting pursuant to the powers provided by Chapter 639 of the Acts of 1950

and Section 2A of Chapter 17 of the General Laws, declared that there now exists in the

Commonwealth of Massachusetts a state of emergency due to the outbreak of the 2019 novel

Coronavirus ("COVID-19");

WHEREAS, on March 11, the COVID-19 outbreak was characterized as a pandemic by

the World Health Organization;

WHEREAS, in response to the pandemic, on March 15, 2020, I issued an Order

requiring all public and private elementary and secondary (K-12) schools in the Commonwealth

to suspend normal, in-person instruction at the end of the school day on March 16, 2020 and not

to re-open for normal operations before April 6, 2020;

WHEREAS, the number of presumptive positive and confirmed cases ofCOVID-19

continues to rise exponentially in the Commonwealth. As of March 24, 2020, 1,159 cases of

COVID-19 were reported by the Department of Public Health, including 11 deaths; and

WHEREAS, sections 7, 8, and SA of chapter 639 of the Acts of 1950 authorize the

Governor, during the effective period of a declared emergency, to exercise any and all authority

over persons and property necessary or expedient for meeting a state of emergency, including but

not limited to authority over public assemblages in order to protect the health and safety of

persons;

NOW, THEREFORE, I hereby order the following:

All public and private elementary and secondary (K-12) schools in the Commonwealth,

excepting residential schools for special needs students, shall not re-open for normal operations

69a

before Monday, May 4, 2020. This directive supersedes the provision of the March 15, 2020

Order establishing an earlier date for re-opening.

As provided in the March 23 Order regarding Essential Services, public schools are

directed to continue efforts to maintain the operation of programs that provide take-out or

delivery food services and other essential, non-educational services to students and families

during the period in which this Order is in effect. Public schools are additionally directed to

continue collaborative efforts to provide student access to alternative learning opportunities.

The Department of Public Health and the Department of Elementary and Secondary

Education, along with any board of health or authorized agent pursuant to G. L. c. 111, § 30,

shall enforce this Order. In addition, I hereby direct the Commissioner of Public Health to act

under the authority of G. L. c. 17, § 2A to supplement the terms of this Order in the event she

determines additional measures are required to ensure that the terms of this Order are observed.

Violation of the terms of this Order may result in penalties pursuant to Section 8 of Chapter 639

of the Acts of 1950.

This Order is effective immediately and shall remain in effect until May 4, 2020 unless

further extended.

'3; /)M

Given in Boston at

this 25th day of

March, two thousand and twenty

CHARLES D. BAKER

GOVERNOR

Commonwealth of Massachusetts

70a

OFFICE OF THE GOVERNOR

COMMONWEALTH OF MASSACHUSETTS

STATE House• BosToN, MA 02133

(617) 725-4000

CHARLES D. BAKER

KARYN E. POLITO

GOVERNOR

LIEUTENANT GOVERNOR

ORDER EXTENDING THE CLOSING OF CERTAIN WORKPLACES

AND THE PROHIBITION ON GATHERINGS OF MORE THAN 10 PEOPLE

COVID-19 Order No. 21

Extending the Operation ofCOVID-19 Order No. 13

WHEREAS, on March 10, 2020, I, Charles D. Baker, Governor of the Commonwealth

of Massachusetts, acting pursuant to the powers provided by Chapter 63 9 of the Acts of 1950

and Section 2A of Chapter 17 of the General Laws, declared that there now exists in the

Commonwealth of Massachusetts a state of emergency due to the outbreak of the 2019 novel

Coronavirus ("COVID-19");

WHEREAS, on March 11, 2020, the COVID-19 outbreak was characterized as a

pandemic by the World Health Organization;

WHEREAS, the number of presumptive positive and confirmed cases ofCOVID-19

continues to rise exponentially in the Commonwealth. As of March 30, 2020, the Department of

Public Health had reported 5,752 cases ofCOVID-19, including 56 deaths, with all counties in

the Commonwealth impacted;

WHEREAS, the Department of Public Health continues to urge all residents of the

Commonwealth to limit activities outside of the home and to practice social distancing at all

times to limit the spread of this highly contagious and potentially deadly virus;

WHEREAS, on March 19, 2020, the Federal Cybersecurity and Infrastructure Security

Agency issued guidance to assist States with identifying critical infrastructure sectors whose

workers provide services and functions that are essential to maintain in order to support a strong

response to the COVID-19 pandemic;

WHEREAS, on March 23, 2020, I issued an Order that designated COVID-19 Essential

Services, temporary closed the bricks-and-mortar premises of businesses and organizations that

do not provide COVID-19 Essential Services, and prohibited gatherings of more than 10 people;

71a

WHEREAS, on March 28, 2020, the Federal Cybersecurity and Infrastructure Security

Agency issued updated guidance on the identification of critical infrastructure sectors during the

COVID-19 Response;

WHEREAS, as Governor, I have identified additional services and functions that

likewise are essential to promote the public health and welfare of the Commonwealth, and

therefore it is imperative to ensure that workers providing critical services and functions in these

State and Federally designated sectors may continue to work to ensure community resilience and

continuity of response efforts; and

WHEREAS, sections 7, 8, and 8A of Chapter 639 of the Acts of 1950 authorize the

Governor, during the effective period of a declared emergency, to exercise any and all authority

over persons and property necessary or expedient for meeting a state of emergency, including but

not limited to authority over public assemblages in order to protect the health and safety of

persons, transportation and travel by any means or mode, regulating the sale of articles of food

and household articles, and policing, protection, and preservation of public and private property;

NOW, THEREFORE, I hereby order the following:

The provisions of the March 23, 2020 Order Assuring Continued Operation of Essential

Services in the Commonwealth, Closing Certain Workplaces, and Prohibiting Gatherings of

More than 10 People ("COVID-19 Order No. 13") are hereby extended until May 4, 2020.

Accordingly, all businesses and other organizations that do not provide COVID-19 Essential

Services shall not re-open their bricks-and-mortar premises to workers, customers, or the public

before May 4, 2020.

Gatherings of more than 10 people also remain prohibited until May 4, 2020.

Effective at 12:00 noon on April 1, 2020, Exhibit A of the previously issued COVID-19

Order No. 13 is hereby replaced with the attached, updated Exhibit A of even date with this

Order to reflect the revised guidance of the Federal Cybersecurity and Infrastructure Security

Agency and the additional services and functions that I, as Governor, have identified as essential

to promote the public health and welfare of the Commonwealth.

The Commissioner of Public Health shall continue to issue guidance as necessary and

subject to my approval to implement the terms ofCOVID-19 Order No. 13.

The Massachusetts Department of Transportation, in consultation with the Division of

Capital and Asset Management and Maintenance, shall issue guidance and enforcement

procedures for the safe operation of public works construction sites, consistent with the terms of

Exhibit A of COVID-19 Order No. 13.

72a

The Department of Public Health, along with any board of health or authorized agent

pursuant to G. L. c. 111, § 30, shall continue to enforce the terms ofCOVID-19 Order No. 13

and implementing guidance issued under the authority of that Order as here amended.

In addition, I renew my directive to the Commissioner of Public Health to act under the

authority of G. L. c. 17, § 2A and G. L. c. 111, § 6 or any other appropriate authority to

supplement the terms of COVID-19 Order No. 13 in the event she determines additional

measures are required to ensure that its terms are observed.

This Order is effective immediately and shall remain in effect until May 4, 2020 unless

further extended.

Given in Boston at (; (rM this 31st day

of March, two thousand and twenty

C/4Jv 7) fb-W

CHARLES D. BAKER

GOVERNOR

Commonwealth of Massachusetts

73a

COVID-19 Essential Services

COVID-19 ESSENTIAL SERVICES

EXHIBIT A OF THE ORDER OF THE GOVERNOR ASSURING CONTINUED OPERATION OF ESSENTIAL

SERVICES IN THE COMMONWEALTH, CLOSING CERTAIN WORKPLACES AND PROHIBITING GATHERINGS

OF MORE THAN 10 PEOPLE

As updated March 31, 2020

Governor Charlie Baker’s emergency order requiring that all businesses and organizations that do not

provide “COVID-19 Essential Services” close their physical workplaces and facilities to workers,

customers and the public will be extended until May 4. Businesses and organizations not on the list of

essential services are encouraged to continue operations through remote means that do not require

workers, customers, or the public to enter or appear at the brick-and-mortar premises closed by the

order. This order also prohibits gatherings of more than 10 people until May 4th.

The Administration updated the “COVID-19 Essential Services” list today, which is based on federal

guidance that was updated earlier this week. The new list will go into effect tomorrow, April 1, at noon.

While these businesses are designated as essential, they are urged to follow social distancing protocols

for workers in accordance with guidance from the Department of Public Health (DPH).

HEALTHCARE / PUBLIC HEALTH

• Workers who perform critical clinical research, development, and testing needed for COVID-19

response.

• Healthcare providers and Caregivers including physicians, dentists, psychologists, mid-level

practitioners, nurses and assistants, infection control and quality assurance personnel,

pharmacists, physical and occupational therapists and assistants, social workers, optometrists,

speech pathologists, chiropractors, other providers of mental and behavioral health care, peer

support and recovery coach workers, personal care attendants, home health aides and home

care workers, and diagnostic and therapeutic technicians and technologists.

• Hospital and laboratory personnel (including accounting, administrative, admitting and

discharge, engineering, epidemiological, source plasma and blood donation, food service,

housekeeping, medical records, information technology and operational technology,

nutritionists, sanitarians, respiratory therapists, etc.).

• Workers in other medical and biomedical facilities (including Ambulatory Health and Surgical,

Blood Banks, Medical Clinics, Community Mental Health Centers, Comprehensive Outpatient

rehabilitation, Methadone/OBOT Clinics, 24 hour Diversionary and Residential Behavioral

Health Providers, End Stage Renal Disease, Health Departments, Home Health care, Hospices,

Hospitals, Rest Homes, Assisted Living Residences, Nursing Care Facilities, Organ Pharmacies,

Procurement Organizations, Psychiatric Residential, Residential Treatment Schools, Rural Health

Clinics and Federally Qualified Health Centers, State Hospitals, licensed medical marijuana

retailers, and retail facilities specializing in medical good and supplies).

• Manufacturer workers for health manufacturing (including biotechnology companies), materials

and parts suppliers, logistics and warehouse operators, distributors of medical equipment

(including those who test and repair), personal protective equipment (PPE), isolation barriers,

medical gases, pharmaceuticals (including companies and institutions involved in the research

and development, manufacture, distribution, warehousing, and supplying of pharmaceuticals,

biotechnology therapies, and medical devices, diagnostics, equipment and services) (including

materials used in radioactive drugs), dietary supplements, blood and blood products, vaccines,

Exhibit A updated as of 3/31/20

74a

COVID-19 Essential Services

•

testing materials, laboratory supplies, cleaning, sanitizing, disinfecting or sterilization supplies,

and tissue and paper towel products.

Public health / community health workers, including those who compile, model, analyze and

communicate public health information.

Blood and plasma donors and the employees of the organizations that operate and manage

related activities.

Workers who manage health plans, billing, and health information, who cannot practically work

remotely.

Workers who conduct community-based public health functions, conducting epidemiologic

surveillance, compiling, analyzing and communicating public health information, who cannot

practically work remotely.

Workers performing information technology and cybersecurity functions at healthcare and

public health facilities, who cannot practically work remotely.

Workers performing security, incident management, and emergency operations functions at or

on behalf of healthcare entities including healthcare coalitions, who cannot practically work

remotely.

Pharmacy employees necessary to maintain uninterrupted prescription filling.

Workers performing mortuary funeral, cremation, burial, cemetery, and related services,

including at funeral homes, crematoriums, cemeteries, and coffin makers.

Workers who coordinate with other organizations to ensure the proper recovery, handling,

identification, transportation, tracking, storage, and disposal of human remains and personal

effects; certify cause of death; and facilitate access to mental/behavioral health services to the

family members, responders, and survivors of an incident.

LAW ENFORCEMENT, PUBLIC SAFETY, AND OTHER FIRST RESPONDERS

• Public, private, and voluntary personnel (front line and management) in emergency

management, law enforcement, fire and rescue services, emergency medical services, and

private security, to include public and private hazardous material responders, air medical service

providers (pilots and supporting technicians), corrections, and search and rescue personnel.

• 911 call center employees (including telecommunicators, dispatchers and managers) and Public

Safety Answering Points and other police communication facilities who can’t perform their

duties remotely.

• Fusion Center employees.

• Workers – including contracted vendors -- who maintain, manufacture, or supply equipment

and services supporting law enforcement emergency service and response operations (to

include electronic security and life safety security personnel).

• Workers supporting the manufacturing of safety equipment and uniforms for law enforcement,

public safety personnel, and first responders.

• Workers supporting the operation of firearm or ammunition product manufacturers, importers,

and distributors.

• Public agency workers responding to abuse and neglect of children, elders, and dependent

adults.

• Workers who support weather disaster / natural hazard mitigation and prevention activities.

• Security staff to maintain building access control and physical security measures.

FOOD AND AGRICULTURE

• Workers supporting groceries, pharmacies, convenience stores, farmers markets and farm

stands, nurseries, greenhouses, garden centers, and agriculture supply stores, and other retail

Exhibit A updated as of 3/31/20

75a

COVID-19 Essential Services

•

(including unattended and vending) that sells human food, animal/pet food and pet supply, and

beverage products (including liquor stores), including retail customer support service and

information technology support staff necessary for online orders, pickup and delivery.

Restaurant carry-out and quick serve food operations, including dark kitchen and food prep

centers, and carry-out and delivery food employees.

Food manufacturer employees and their supplier employees—to include those employed in

food ingredient production and processing facilities; livestock, poultry, seafood slaughter

facilities; pet and animal feed processing facilities; human food facilities producing by-products

for animal food; beverage production facilities; and the production of food packaging.

Farmers, farm workers, and agribusiness support services to include those employed in auction

and sales: grain and oilseed handling, processing and distribution; animal food, feed, and

ingredient production, packaging, and distribution; manufacturing, packaging, and distribution

of veterinary drugs; truck delivery and transport; farm and fishery labor needed to produce our

food supply domestically and for export.

Farmers, farm workers, support service workers, and their supplier employees to include those

engaged in producing and harvesting field crops; commodity inspection; fuel ethanol facilities;

biodiesel and renewable diesel facilities; storage facilities; and other agricultural inputs.

Employees and firms supporting the distribution of food, feed, and beverage and ingredients

used in these products, including warehouse workers, vendor- managed inventory controllers

and blockchain managers.

Workers supporting the sanitation and pest control of all food manufacturing processes and

operations from wholesale to retail.

Employees in cafeterias used to feed employees, particularly employee populations sheltered

against COVID-19.

Food service workers in residential schools with students who are unable to leave campus

Workers in animal diagnostic and food testing laboratories in private industries and in

institutions of higher education.

Government, private, and non-governmental organizations’ workers essential for food

assistance programs (including school breakfast and lunch programs) and government

payments.

Employees of companies engaged in the production, storage, transport, and distribution of

chemicals, medicines, vaccines, and other substances used by the food and agriculture industry,

including seeds, pesticides, herbicides, fertilizers, minerals, enrichments, and other agricultural

production aids.

Animal agriculture workers to include those employed in veterinary health (including those

involved in supporting emergency veterinary or livestock services); raising of animals for food;

animal production operations; livestock markets; slaughter and packing plants, manufacturers,

renderers, and associated regulatory and government workforce.

Transportation supporting animal agricultural industries, including movement of animal medical

and reproductive supplies and materials, animal vaccines, animal drugs, feed ingredients, feed,

and bedding, live animals, animal by-products, and deceased animals for disposal.

Workers who support sawmills and the manufacture and distribution of fiber and forest

products, including, but not limited to timber, paper, and other wood and fiber products.

Employees engaged in the manufacture and maintenance of equipment and other infrastructure

necessary for agricultural production and distribution.

Organizations and workers responsible for the care and custody of animals, pets and livestock

ENERGY

Exhibit A updated as of 3/31/20

76a

COVID-19 Essential Services

•

Workers supporting the energy sector, regardless of the energy source (including but not limited

to nuclear, fossil, hydroelectric, or renewable), segment of the system, or infrastructure the

worker is involved in, or who are needed to monitor, operate, engineer, and maintain the

reliability, safety, environmental health, and physical and cyber security of the energy system.

• Energy/commodity trading/scheduling/marketing functions, who can't perform their duties

remotely.

• IT and OT technology for essential energy sector operations including support workers,

customer service operations; energy management systems, control systems, and Supervisory

Control and Data Acquisition SCADA systems, and energy sector entity data centers;

cybersecurity engineers; and cybersecurity risk management.

• Workers supporting the energy sector through renewable energy infrastructure or energy

efficiency projects (including, but not limited to wind, solar, biomass, hydrogen, ocean,

geothermal, and/or hydroelectric), including those supporting construction, manufacturing,

transportation, permitting, operation/maintenance, monitoring, and logistics.

• Workers and security staff involved in nuclear re-fueling operations.

• Providing services related to energy sector fuels (including, but not limited, petroleum (crude

oil), natural gas, propane, natural gas liquids, other liquid fuels, nuclear, and coal), supporting

the mining, processing, manufacturing, construction, logistics, transportation, permitting,

operation/maintenance, security, waste disposal and storage, and monitoring of support for

resources.

• Environmental remediation/monitoring, limited to immediate critical needs technicians.

• Manufacturing and distribution of equipment, supplies, and parts necessary to maintain

production, maintenance, restoration, and service at energy sector facilities (across all energy

sector segments).

Electricity industry:

• Workers who maintain, ensure, or restore, or are involved in the reliable development,

transportation, fuel procurement, expansion, or operation of the generation, transmission, and

distribution of electric power, including call centers, utility workers, engineers, retail electricity,

constraint maintenance, and fleet maintenance technicians- who cannot perform their duties

remotely.

• Workers at coal mines, production facilities, and those involved in manufacturing,

transportation, permitting, operation/maintenance and monitoring at coal sites which is critical

to ensuring the reliability of the electrical system.

• Workers who produce, process, ship and handle coal used for power generation and

manufacturing.

• Workers needed for safe and secure operations at nuclear generation to include but not limited

to, the broader nuclear supply chain, parts to maintain nuclear equipment, fuel manufacturers

and fuel components used in the manufacturing of fuel.

• Workers at renewable energy infrastructure (including, but not limited to wind, solar, biomass,

hydrogen, geothermal, and/or hydroelectric), including those supporting construction,

manufacturing, transportation, permitting, operation/maintenance, monitoring, and logistics.

• Workers at generation, transmission, and electric black start facilities.

• Workers at Reliability Coordinator, Balancing Authorities, and primary and backup Control

Centers, including but not limited to independent system operators, regional transmission

organizations, and local distribution control centers.

• Mutual assistance personnel which may include workers from outside of the state or local

jurisdiction.

• Vegetation management and traffic control for supporting those crews.

Exhibit A updated as of 3/31/20

77a

COVID-19 Essential Services

•

Environmental remediation/monitoring workers limited to immediate critical needs technicians.

Instrumentation, protection, and control technicians.

Essential support personnel for electricity operations.

Generator set support workers such as diesel engineers used in power generation including

those providing fuel.

Petroleum industry:

• Workers for onshore and offshore petroleum drilling operations; platform and drilling

construction and maintenance; transportation (including helicopter operations), maritime

transportation, supply, and dredging operations; maritime navigation; well stimulation,

intervention, monitoring, automation and control, extraction, production; processing; waste

disposal, and maintenance, construction, and operations.

• Workers for crude oil, petroleum and petroleum product storage and transportation, including

pipeline, marine transport, terminals, rail transport, storage facilities and racks and road

transport for use as end-use fuels such as gasoline, diesel fuel, jet fuel, and heating fuels or

feedstocks for chemical manufacturing.

• Petroleum and petroleum product security operations center employees and workers who

support maintenance and emergency response services.

• Petroleum and petroleum product operations control rooms/centers and refinery facilities.

• Retail fuel centers such as gas stations and truck stops, and the distribution systems that

support them.

• Supporting new and existing construction projects, including, but not limited to, pipeline

construction.

Natural Gas, Natural Gas Liquids (NGL), Propane, and other liquid fuels:

• Workers who support onshore and offshore drilling operations, platform and drilling

construction and maintenance; transportation (including helicopter operations); maritime

transportation, supply, and dredging operations; maritime navigation; natural gas and natural

gas liquid production, processing, extraction, storage and transportation; well intervention,

monitoring, automation and control; waste disposal, and maintenance, construction, and

operations.

• Transmission and distribution pipeline workers, including compressor stations and any other

required, operations maintenance, construction, and support for natural gas, natural gas liquid,

propane, and other liquid fuels.

• Natural gas, propane, natural gas liquids, and other liquid fuel processing plants, including

construction, maintenance, and support operations.

• Natural gas processing plants workers, and those that deal with natural gas liquids.

• Workers who staff natural gas, propane, natural gas liquids, and other liquid fuel security

operations centers, operations dispatch and control rooms/centers, and emergency response

and customer emergencies (including leak calls) operations.

• Drilling, production, processing, refining, and transporting natural gas for use as end-use fuels,

feedstocks for chemical manufacturing, or use in electricity generation.

• Dispatch and control rooms and emergency response and customer emergencies, including

propane leak calls.

• Propane gas service maintenance and restoration, including call centers.

• Propane, natural gas liquids, and other liquid fuel distribution centers.

• Propane gas storage, transmission, and distribution centers.

• Supporting new and existing construction projects, including, but not limited to, pipeline

construction

Exhibit A updated as of 3/31/20

78a

COVID-19 Essential Services

•

Ethanol and biofuel production, refining, and distribution.

Workers in fuel sectors (including, but not limited to nuclear, coal, and gas types and liquid

fuels) supporting the mining, manufacturing, logistics, transportation, permitting,

operation/maintenance, and monitoring of support for resources.

Steam workers:

• Workers who support steam distribution companies’ provision of district heating and any

electric generation

• Workers who support steam distribution companies’ dispatch and control rooms and

emergency response and customer emergencies, including steam leak calls

• Workers who support steam distribution companies’ service maintenance and restoration,

including call centers

• Workers who support steam distribution companies’ storage, transmission, and distribution

centers

WATER AND WASTEWATER

Employees needed to operate and maintain public and private drinking water and wastewater/drainage

infrastructure, including:

• Operational staff at water authorities.

• Operational staff at community water systems.

• Operational staff at wastewater treatment facilities.

• Workers repairing water and wastewater conveyances and performing required sampling or

monitoring, including field staff.

• Operational staff for water distribution and testing.

• Operational staff at wastewater collection facilities.

• Operational staff and technical support for SCADA Control systems.

• Chemical and equipment suppliers to water and wastewater systems and personnel protection.

• Workers who maintain digital systems infrastructure supporting water and wastewater

operations.

TRANSPORTATION AND LOGISTICS

• Employees supporting or enabling transportation functions, including truck drivers, bus drivers,

dispatchers, maintenance and repair technicians, warehouse workers, truck stop and rest area

workers, Registry of Motor Vehicle (RMV) employees, towing/recovery services, roadside

assistance workers, intermodal transportation personnel, and workers who maintain and

inspect infrastructure (including those that require cross-jurisdiction travel).

• Workers supporting the distribution of food, pharmaceuticals (including materials used in

radioactive drugs) and other medical materials, fuels, chemicals needed for water or water

treatment and energy

• Workers, including contracted vendors, engaged in the maintenance and operation of essential

highway infrastructure, including roads, bridges, and tunnels (e.g., traffic operations centers and

moveable bridge operators).

• Employees of firms providing services, supplies, and equipment that enable warehouse and

operations, including cooling, storing, packaging, and distributing products for wholesale or

retail sale or use. Includes cold- and frozen-chain logistics for food and critical biologic products.

Exhibit A updated as of 3/31/20

79a

COVID-19 Essential Services

•

Mass transit, freight and passenger rail workers, including contracted vendors, providing transit

services and/or performing critical or routine maintenance to rail or mass transit infrastructure

or equipment.

Employees supporting personal and commercial transportation services – including taxis,

delivery services, vehicle rental services, bicycle maintenance and car-sharing services, and

transportation network providers.

Workers responsible for operating and dispatching passenger, commuter and freight trains

public transportation and buses and maintaining rail and transit infrastructure and equipment.

Maritime transportation workers, including dredgers, port workers, mariners, ship

crewmembers, ship pilots and tug boat operators, equipment operators (to include

maintenance and repair, and maritime-specific medical providers), ship supply, chandler, and

repair companies.

Workers including truck drivers, railroad employees and contractors, maintenance crew, and

cleaners supporting transportation of chemicals, hazardous, medical, and waste materials to

support critical infrastructure, capabilities, functions, and services, including specialized carriers,

crane and rigging industry workers.

Bus drivers and workers who provide or support intercity, commuter and charter bus service in

support of other essential services or functions.

Automotive repair, maintenance, and transportation equipment manufacturing and distribution

facilities (including those who repair and maintain electric vehicle charging stations).

Workers who respond to and clear traffic crashes, including contracted vendors and dispatchers

Transportation safety inspectors, including hazardous material inspectors and accident

investigator inspectors.

Manufacturers and distributors (to include service centers and related operations) of packaging

materials, pallets, crates, containers, and other supplies needed to support manufacturing,

packaging staging and distribution operations.

Postal, parcel, courier, last-mile delivery, and shipping and related workers, to include private

companies.

Workers who support moving and storage services

Employees who repair and maintain motor vehicles, subway and rail vehicles, rolling stock,

buses, aircraft, rail equipment, marine vessels, bicycles, and the equipment and infrastructure

that enables operations that encompass movement of cargo and passengers.

Air transportation employees, including air traffic controllers and maintenance personnel, ramp

workers, aviation and aerospace safety, security, and operations personnel and accident

investigations.

Workers, including contracted vendors, who support the operation, distribution, maintenance,

and sanitation, of air transportation for cargo and passengers, including flight crews,

maintenance, airport operations, those responsible for cleaning and disinfection, and other onand off- airport facilities workers.

Workers supporting transportation via inland waterways such as barge crew, dredging, river

port workers for essential goods.

Workers critical to rental and leasing of vehicles and equip

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