Alert March 23, 2020

Update: How Life Sciences Companies Can Assess Stay-At-Home Restrictions in MA and CT

Over the past week, the governors of several states have issued “stay-at-home’ orders to combat the spread of the coronavirus known as COVID-19. These stay-at-home orders significantly limit freedom of movement within the affected states and instruct businesses to institute remote work solutions for their employees—or else to shut their doors entirely.

Since Goodwin’s alert sent yesterday, Connecticut has released its guidance and Massachusetts has issued a stay-at-home order and its own guidance. The below provides an overview of these two stay-at-home orders as of 12:00 PM eastern on March 23, 2020, and analysis of the provisions most relevant to biotechnology and other life sciences companies with laboratory activities.

Connecticut

On March 20, Governor Lamont issued Executive Order Number 7H, effective as of March 23, 2020, at 8:00 PM. Order 7H mirrors the instructions of New York’s Order 202.8, mandating that all businesses and non-profits require their employees to work from home, except for any “essential business” or “entity providing essential services or functions”. Order 7H references the same 16 federal “critical infrastructure sectors” as California’s Order N-33-20, and provides for the Department of Economic and Community Development to provide lawfully binding guidance about which businesses are essential. That guidance issued on March 23, and is available here.

The guidance contains a large number of exceptions. Relevant to life sciences companies, essential businesses include “[h]ealthcare and related operations including”: biotechnology therapies, consumer health products and services, manufacturing, distributing, warehousing, and supplying of pharmaceuticals, including research and development, medical supplies and equipment providers, including devices, diagnostics, services, and any other healthcare related supplies or services, and research and laboratory services (including, but not limited to testing and treatment of COVID-19).

These categories cover many life sciences companies, including many operating laboratories. However, the guidance also specifies that “To the extent possible, employees of Essential Businesses whose duties are not critical to an Essential Business function described below should telecommute or utilize any work from home procedures available to them.”

Massachusetts

On March 23, Governor Baker issued COVID-19 Order No. 13, effective as of 12 pm ET on March 24, 2020. Order 13 requires that “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[.]”

Order 13 included with it an Exhibit A defining “COVID-19 Essential Services” that are excepted from the order, available here.

Relevant to life sciences companies, the guidance contains an exception substantially similar to California’s guidance:

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

This category covers many life sciences companies, including many operating laboratories. Companies that do fall under this description are excluded from the stay-at-home restriction. In addition, in his press conference this morning, Governor Baker specifically stated that manufacturers of medical products and pharmaceutical companies developing treatments for COVID-19 and other diseases will continue to operate, and are exempt as essential business, and government officials have since confirmed that biopharma R&D specifically is intended to be exempt as a COVID-19 Essential Service under Order 13. However, Order 13 provides also that such companies “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.”

Companies that do not fall within this or any other exception can request designation as an essential business here. But please note that Exhibit A specifically states that such requests should “only be made if [the requesting businesses] are NOT covered by the guidance.”

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Please visit Goodwin’s Coronavirus Knowledge Center, where firm lawyers from across the globe are issuing new guidance and insights to help clients fully understand and assess the ramifications of COVID-19 and navigate the potential effects of the outbreak on their businesses.