In this alert, we will summarize the two COVID-19 Essential Services Orders issued by Massachusetts Governor Charlie Baker (COVID-19 Executive Order No. 13 and COVID-19 Executive Order No. 21) and the related guidance document and FAQ, each issued by the Massachusetts Department of Health (“DPH”). We will then answer some of the most pressing questions facing the lodging industry regarding such documents.

Summary of the COVID-19 Essential Services Orders

As of the date of this alert, most of the world is in the throes of dealing with the COVID-19 pandemic. The first case of COVID-19 was diagnosed in Massachusetts in early February, and on March 10, 2020, Massachusetts Governor Charlie Baker declared a state of emergency.

As the pandemic spread throughout Massachusetts, on March 23, 2020, Governor Charlie Baker issued COVID-19 Executive Order No. 13 (“COVID-19 Order 13”) 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 from March 24, 2020, until April 7, 2020. A list of COVID-19 Essential Services was attached to Executive Order No. 13 as Exhibit A. Under this first version of Exhibit A, “Hotel workers” were listed as workers providing essential services. Thus, as of March 23, 2020, while many hotels in Massachusetts voluntarily closed their doors as a result of low occupancy and health and safety concerns, none were then legally required to do so under state law.

Then, on March 31, 2020, Governor Baker issued COVID-19 Executive Order No. 21 (“COVID-19 Order 21”; COVID-19 Order No. 13 and COVID-19 Order No. 21 are collectively the “COVID-19 Essential Services Orders”). COVID-19 Order No. 21 extended the effective period of Executive Order No. 13 until May 4, 2020, and replaced the original “Exhibit A” attached to COVID-19 Executive Order No. 13 with an updated list of COVID-19 Essential Services, which went into effect at 12:00 p.m. on April 1, 2020.

With regard to lodging facilities, under this new updated list of COVID-19 Essential Services, workers were allowed to work “at hotels, motels, inns, and other lodgings providing overnight accommodation, but only to the degree those lodgings are offered or provided to accommodate the COVID-19 Essential Workforce, other workers responding to the COVID-19 public health emergency, and vulnerable populations.” (Emphasis added).

After reviewing the updated list of Essential Services, we note that:

• The list of lodging facilities subject to COVID-19 Order 21 was expanded to include “hotels, motels, and other lodgings providing overnight accommodation,” and

• The type of guests that might be allowed to stay in such lodging facilities was expanded to include: (1) workers that are part of the COVID-19 Essential Workforce (i.e., any workers that are covered elsewhere on the updated list of COVID-19 Essential Services), (2) other workers responding to the COVID-19 public health emergency, and (3) vulnerable populations.

DPH Guidance Document and DPH FAQ

Further guidance on the meaning and effect of the language in the updated list of COVID-19 Essential Services was provided in a guidance document (the “DPH Guidance Document”) and Frequently Asked Questions (the “DPH FAQ”), each issued by the DPH on March 31, 2020, and April 2, 2020, respectively.

Important Questions and Answers For Owners and Operators of Massachusetts Lodging Facilities

Are the DPH Guidance Document and DPH FAQ legally binding?

Unlike the COVID-19 Essential Services Orders, neither the DPH Guidance Document nor the DPH FAQ has the force of law. They are neither laws nor regulations. However, each constitutes the guidance and recommendations of the Commissioner of the DPH regarding what would constitute appropriate practices and legal compliance under the COVID-19 Essential Services Orders. Thus, they warrant significant respect and deference, despite not being legally binding.

Can owners and operators of lodging facilities be liable to workers, guests, and other third parties if they comply with the COVID-19 Essential Services Orders, DPH Guidance Document and DPH FAQ?

We believe so. While some of the language is ambiguous on this point, we do not believe that the COVID-19 Essential Services Orders, DPH Guidance Document or DPH FAQ provides immunity from tort claims. Even if an owner and/or operator of a lodging facility fully complies with state law, they can still face legal claims from employee, guests and other third parties who may claim to have been harmed as a result of the negligence or gross negligence of the lodging facility owner and/or operator. There have already been lawsuits brought against the cruise ship industry, and we expect similar suits to be brought against owners and operators in the lodging industry. If you are still operating a lodging facility in Massachusetts, we suggest that you seek legal counsel immediately to discuss ways to mitigate the risk posed by such potential third party litigation.

Might there be insurance implications to staying open?

Yes. Lodging owners and/or operators should seek the advice of their insurance providers and lawyers about the possible consequences to their insurance coverage by remaining open during the state of emergency. This is especially true if the lodging facility will be used as a make-shift hospital.

What does a “Lodging” facility mean under the COVID-19 Essential Services Orders?

The DPH Guidance Document expressly defines “Lodging,” as the provision of overnight accommodations by a commercial transaction in any of the following categories:

• Bed and breakfast establishments

• Bed and breakfast homes

• Hotels

• Lodging houses rented for a period of 31 days or fewer

• Professionally-managed units rented for a period of 31 days or fewer

• Short-term rentals (including Airbnb, VRBO and similar rental properties) rented for a period of 31 days or fewer

• Resorts

• Inns

• Time-shares

What are the limited purposes and uses for which lodging may be an essential service?

The DPH Guidance Document provides a list of uses that are deemed to be COVID-19 Essential Services. Workers engaged in providing or servicing or maintaining lodging for any of those purposes are included within the “COVID-19 Essential Workforce.” Here is the list of such uses:

1. Housing and accommodation for health care workers, first responders, and other workers constituting the COVID-19 Essential Workforce as specified in Exhibit A of COVID-19 Order No. 13 (as amended);

2. To the extent not already included in (a) [sic.], housing and accommodation for out-of-state workers engaged in the transportation of materials, logistics, and construction associated with the delivery of health-related services, such as the development of COVID-19 alternative care sites;

3. Housing and accommodation for members of vulnerable populations (for instance when serving as an emergency shelter for homeless individuals and families);

4. Housing and accommodation for Massachusetts residents (i) who are isolating or self-quarantining; and (ii) families or roommates of individuals who are isolating or self-quarantining; but (iii) in each case, for no longer than the period required to complete the necessary period of self-isolation or self-quarantining;

5. Housing and accommodation for individuals receiving long-term, specialized medical care from a physician located in the Commonwealth, and for accompanying family members;

6. Housing, accommodation, and shelter when required by extenuating circumstances, such as fire or casualty to ensure the care and safety of Massachusetts residents and to accommodate other persons unable to return to their own homes due to flight cancellations, border closures, or other direct and material constraints on travel.

Does the above list of purposes and uses allow guests with COVID-19 to check-in?

Yes. Many of the above purposes and uses described in the DPH Guidance Document, including without limitation the uses described above in subparagraph d., allow guests who very likely have COVID-19 to check into a lodging facility in Massachusetts. Here is a guide to preparing your hotel for use during the COVID-19 pandemic. However, the guide does not address the legal implications of staying open during the COVID-19 pandemic.

Can owners and/or operators of lodging facilities close and still comply with the COVID-19 Essential Services Orders, DPH Guidance Document and DPH FAQ?

Yes. Any owner and/or operator of a lodging facility can still voluntarily close. The COVID-19 Essential Services Orders, DPH Guidance Document and DPH FAQ do not force any lodging facility to stay open.

How should lodging owners and/or operators confirm that a guest falls within one of the allowable exceptions for occupying lodgings?

Per the DPH FAQ:

• Lodging operators should inform prospective guests of the limitations on lodgings and provide them with or direct them to the list of allowable exceptions.

• Lodging operators should reach out to individuals that book reservations on a third-party party website to be certain that these individuals are aware of the restrictions on lodging in Massachusetts.

• Lodging operators are required to accept a general self-certification by individuals or families that they fall within one of the allowable exceptions without asking prospective guests to identify the specific exception that applies to their situation.

According to the DPH FAQ, lodging operators do not need to independently verify that guests fall into one of the permitted categories.

In addition, per the DPH FAQ, lodging operators will not be held liable to the Commonwealth of Massachusetts for providing accommodations to a guest who fraudulently reports that he or she is covered by one of the permitted categories.

On the other hand, per the DPH FAQ, lodging operators will be held liable to the Commonwealth of Massachusetts for knowingly advertising or offering to the public accommodations for vacation and leisure purposes or for other purposes clearly falling outside of the permitted categories.

While the DPH FAQ does not have the force of law, owners and/or operators who choose to remain open during the effective period of the COVID-19 Essential Services Orders should understand that the DPH FAQ constitutes the Commissioner of the Massachusetts Department of Health’s recommendations and guidance with respect to legal compliance. Thus, we believe that great respect and deference should be afforded to the above guidance.

OWNERS AND/OR OPERATORS OF LODGING FACILITIES IN MASSACHUSETTS SHOULD EXPECT COMPLIANCE CHECKS BY STATE OFFICIALS.

Who is considered to be a member of a vulnerable population?

• Individuals and families may consider themselves part of a vulnerable population if they have no other residence within or outside the Commonwealth to which they can safely return, or if they would be at risk of homelessness if forced to vacate the lodging unit.

• For the purposes of the DPH Guidance Document, the presence of the COVID-19 virus in the community where an individual or family normally resides is not a circumstance that would mean it is unsafe to return.

Are hotel employees allowed to travel to and from a property without a note certifying employment?

Yes. Per the DPH FAQ, hotel employees traveling to and from properties are allowed to do so, and it is not necessary to have a note certifying employment. On-site security is also allowed.

Can airline crews still check-in?

Airline crews provide Essential Services pursuant to the updated list of COVID-19 Essential Services, as confirmed by the DPH FAQ. They are allowed to check-in to Massachusetts lodging facilities.

Can the owner and/or operator of a lodging facility take reservations for the period after May 4, 2020?

Yes. Per the DPH FAQ, the COVID-19 Essential Services Orders are currently in effect until May 4, 2020. There is no prohibition on lodging facility owners and/operators accepting reservations for the period after that date, but if the COVID-19 Essential Services Orders are extended beyond May 4, 2020, such reservations will have to be canceled unless they fall into an exception for Essential Services (as such exceptions and definitions may be in effect at the time). We are not currently aware of any governmental guidance regarding cancellation fees.