As our nation continues to grapple with the coronavirus pandemic, governments at all levels (local, state and federal) are responding and attempting to help flatten the curve. Some governors and mayors are shutting down certain business operations while others are focusing more on non-business activities. Everything remains fluid, but we are seeing state and local governments exempting so-called “essential” or “critical” businesses and industries from these shutdown orders so they may remain open. So, how do you know if your business or industry is “essential” or “critical” and ensure that it is deemed as such?

Generally, this is a question of state and local law. However, many jurisdictions seem to be looking to federal guidance as a basis for making this determination. The Cybersecurity and Infrastructure Security Agency (CISA) recently issued “Guidance on the Essential Critical Infrastructure Workforce: Ensuring Community and National Resilience in COVID-19 Response,” which provides guidance to state, local, tribal, and territorial jurisdictions and the private sector on defining essential critical infrastructure workers. CISA executes the Secretary of Homeland Security’s responsibilities as assigned under the Homeland Security Act of 2002 to provide strategic guidance, promote a national unity of effort, and coordinate the overall federal effort to ensure the security and resilience of the nation's critical infrastructure. The workers identified in this guidance generally represent the workforce related to the 16 critical infrastructure sectors’ assets, systems, and networks, whether physical or virtual, that are considered so vital to the United States that their incapacitation or destruction would have a debilitating effect on security, national economic security, national public health or safety, or any combination thereof. These sectors include:

1. Chemical
2. Commercial facilities
3. Communications
4. Critical manufacturing
5. Dams
6. Defense industrial base
7. Emergency services
8. Energy
9. Financial services
10. Food and agriculture
11. Government facilities
12. Healthcare and public health
13. Information technology
14. Nuclear reactors, materials, and waste
15. Transportation systems
16. Water and wastewater systems

CISA’s guidance, however, is not binding, and states and local governments are establishing the specific parameters for their respective restrictions. Some states such as California are simply adopting CISA’s guidance. Similarly, Illinois and Louisiana have created their own definitions that reference and incorporate CISA’s guidance. Conversely, New York created its own definition and left open the option of seeking an opinion for businesses that have been excluded. Some states have gone as far as Pennsylvania to develop a spreadsheet of which specific business and industries are covered. Many other states and local governments have already closed bars, dine-in restaurants and other entertainment-related businesses with a view that these are non-essential businesses. Although different jurisdictions are taking different approaches, they are all making determinations about what is “essential” and “non-essential.”

Whether you are in a state or community with a pending shutdown order or one may be looming, it is important to be proactive and ensure that your critical business operations are deemed “essential.” The government officials and staff that are making key decisions and determining the parameters of a shutdown may or may not fully understand your business or how critical it is. Accordingly, it is important that you engage your state and local officials and staff sooner rather than later.