Essential vs. Non-essential Services

 Since the COVID-19 outbreak first prompted Governor Charlie Baker to issue a declaration of a State of Emergency on March 10, 2020, the impacts to the state’s economy and on the retail industry have been swift and severe.  RAM members have since largely fallen into three categories:

  • Essential and open, selling essential goods/services
  • Essential and open, but with access restrictions (i.e., takeout & delivery only)
  • Non-essential and closed

The Governor’s Essential Services Order, the related list of “COVID-19 Essential Services”, and the COVID-19 Essential Services FAQs, have been interpreted and reinterpreted by many, while continuing to evolve.  The state has updated the FAQs frequently to attempt to provide additional guidance and to answer questions that have arisen, with the most recent version of the FAQs dated April 14th.  All members with questions as to their status are encouraged to review the order and related guidance and to check back frequently on the FAQs.

RAM has maintained regular lines of communication with the Governor’s office since the beginning of this public health crisis.  We have had input into the discussions around “essential vs. non-essential” and continue to relay member questions and concerns.  We have argued on behalf of our members for the ability for all sellers – essential and non – to be able to continue to serve their customers, provided it can be done in a safe and secure manner.  “Essential” businesses that are open are following CDC, state and local guidelines on customer and employee safety protocols and are employing important social distancing practices.  Non-essential businesses are closed.  In most states, similarly categorized “non-essential” businesses that are closed are still allowed to fulfill orders curbside and ship online orders out from a closed store, utilizing a limited staff working inside a closed store.  As we understand from our national industry partners, Massachusetts is one of only a few prohibiting this practice.

As members continue to operate in accordance with the state “essential” guidelines, many find themselves also confronted with additional, local municipal restrictions.  RAM has advocated on behalf of uniform statewide standards and preemption during the crisis, just as we so often do during normal times and are faced with local product or sales restrictions.  The state has been reluctant to preempt any local activity to date, except in the case of the April 7th order relative to occupancy limits in grocery stores.  In that order, the Governor did state that “No Local Board of Health shall prescribe or enforce a different limitation on Grocery store occupancy levels.” 

Unfortunately, the absence of that same statement of preemption elsewhere in the order and in previous orders has led to confusion and frustration for retailers and consumers who all share the same desire for a safe and efficient shopping environment.  Local nuances on the restrictions vary from requiring the roping off of “non-essential” products in Chicopee and other localities to other more recent local actions that expect retailers to enforce mask and face covering mandates on customers.  There is no central repository for municipalities to post information on these local orders, and we are increasingly relying on our members to inform us of them. 

The direction from the Governor’s office has been clear.  The Governor has given latitude to local health authorities and local police departments to enforce his orders and those that municipalities may add.  The trend in the evolving “Essential Services” order and FAQs has been to become more restrictive, not less.

RAM continues to communicate with the Administration, the Legislature and local authorities on the needs of our members, your employees and your customers.  We will continue to seek clarity and additional guidance where it is needed.  Yet, we also continue to plan for the eventual and gradual reopening of the economy when public health authorities deem it is safe to do so.  The allowance of in-store employees to facilitate curbside pickup or “appointment only” service at closed stores is the obvious first step and we have encouraged the Administration to allow for this as soon as possible.  Re-openings with reduced limits on occupancies could likely follow.  Again, these steps would follow at the direction and guidance of the CDC and other public health officials when they indicate it is indeed safe to do so.                      

The current 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” extends through Monday, May 4th, 2020.