CISA Guidance Expands Scope of ‘Essential’ Energy Workers Amid COVID-19

Morgan Lewis - Power & Pipes

A week after first issuing guidance identifying the workers considered essential for critical industries in the United States during the coronavirus (COVID-19) pandemic, the US Department of Homeland Security’s Cybersecurity & Infrastructure Security Agency (CISA) on March 28, 2020, revised that guidance to capture a broader array of workers, particularly in the energy sector.

The expansions and clarifications classifying the following workers as essential may be of particular interest to energy companies:

  • A broad catch-all for energy workers of all kinds necessary for real-time operations, reliability, safety, environmental health, and security, as well as “essential support personnel for electricity operations”;
  • Energy physical and derivative commodity traders, schedulers, and marketers who cannot perform their duties remotely;
  • Information technology and operational technology workers for “essential energy sector operations”;
  • Workers whose activities are needed to support renewable energy infrastructure, including those involved in construction, manufacture, permitting, and operations, as well as individuals at renewable generation facilities engaging in those functions;
  • Workers needed for nuclear re-fueling operations, as well as more generally “workers who manage hazardous materials associated with … nuclear facilities”;
  • Workers supporting critical supply chains, including in particular workers needed for the “broader nuclear supply chain, parts to maintain nuclear equipment, fuel manufacturers, and fuel components used in the manufacturing of fuel” as well as workers “for supply chains associated with … nuclear facilities;” and
  • Workers involved in onshore and offshore natural gas production.

Note that this guidance remains voluntary. The revised memorandum issued by CISA emphasizes that decisions regarding which workers are essential remains within the discretion of state and local governments:

This list is advisory in nature. It is not, nor should it be considered, a federal directive or standard. Additionally, this advisory list is not intended to be the exclusive list of critical infrastructure sectors, workers, and functions that should continue during the COVID-19 response across all jurisdictions. Individual jurisdictions should add or subtract essential workforce categories based on their own requirements and discretion.

As a result, companies in the energy sector should closely review their state and local designations of essential workers. In many states, CISA’s guidance is incorporated by reference, but in other states that is not the case. For workers who are considered essential, energy companies should consider issuing supporting paperwork for these claims.

 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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