In response to a growing surge of COVID-19 cases around the country, many states and municipalities have reverted to face covering advisories and, in some cases, mandates. Massachusetts is no different. Indeed, at this time, four Massachusetts cities have issued guidance "strongly recommending" that both vaccinated and unvaccinated persons wear face coverings when in any public, indoor setting, while 10 other cities have mandated face coverings in all municipal buildings.
The city of Boston, however, has recently taken these face covering measures a step further and ushered in a return to the familiar "across-the-board" face covering mandates that became a hallmark of businesses through 2020. On August 20, acting Mayor Kim Janey announced that, effective August 27, 2021, the city of Boston will require that all persons wear face coverings "whenever they are indoors on the premises of a business, club, place of assembly or other place that is open to members of the public, including but not limited to retail establishments, restaurants, bars, performance venues, social clubs, event spaces, and municipal buildings."
The face covering order only applies to businesses operating in the city of Boston and specifically exempts from its mandate any informal gatherings at private residences in which no compensation for use of the property is paid to the owner. In addition, certain individuals are specifically exempted from the order, including "children under two years of age, anyone who has trouble breathing, anyone who is unconscious, incapacitated or otherwise unable to remove the mask without assistance, or anyone who due to disability is unable to wear a mask."
Notably, acting Mayor Janey's office issued a series of FAQs clarifying that the face covering mandate "does not apply to offices or businesses that are not open to the public." For employers that operate in purely private settings (i.e., office spaces or facilities that are only accessible to employees or authorized visitors), decisions concerning face covering mandates or recommendations for authorized personnel will be left to the individual business.
For businesses operating in Boston, the mandatory face covering order will supersede the more lenient face covering advisory issued by the Massachusetts Department of Public Health (DPH) in July 2021, pursuant to which all unvaccinated people are strongly recommended to wear face coverings when indoors. The DPH advisory also mandates face coverings for all persons using public and private transportation systems (such as rideshares, livery, taxi, and all MBTA transportation systems), as well as in health care facilities and congregate care settings.
Businesses with operations in the city of Boston should carefully review the new face covering order and consult with attorneys at Foley as to how this new order may impact their operations.
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