Revised Federal “Advisory” Guidance on “Essential” Critical Infrastructure and Workforce Issued, Which Could Affect the Scope of State and Local Stay-At-Home Orders

Seyfarth Shaw LLP

Seyfarth Synopsis:  The Cybersecurity & Infrastructure Agency (CISA), on behalf of the Federal government, has issued a revised advisory memorandum listing “essential” infrastructure and workers during the COVID-19 pandemic. The Guidance is intended to assist States and other localities and is not binding. However, states such as California, Hawaii, Minnesota and North Carolina, as well as cities and counties across the country have incorporated the CISA Guidance into their respective stay-at-home orders. The Guidance, therefore, could have real implications on whether a business may remain open during the current pandemic.

On March 28, 2020, CISA, a part of the Department of Homeland Security, issued a revised advisory memorandum concerning identification of essential critical infrastructure workers during the COVID-19 response (the “Guidance”). The Guidance provides an update to the previously issued March 19, 2020 guidance (which was summarized in prior alerts, here and here).

The Guidance is Key to Understanding Many Shelter in Place Orders. Similar to the initial CISA guidance, the revised Guidance includes an “essential” critical infrastructure workforce advisory list, which is intended to help State and local officials protect citizens while ensuring continuity of functions critical to public health and safety, as well as economic and national security.

The list is important to many employers during the coronavirus pandemic. States, counties, and cities across the country rely on it to define which businesses may remain essential and thus able to operate onsite under COVID-19 stay-at-home orders. For example, Hawaii, Indiana, Louisiana, Minnesota, North Carolina and West Virginia expressly incorporate the Guidance into their definitions of businesses that may remain open under their stay-at-home orders. Others, such as California and Montana, cite to the guidance as “consistent” with the entities that should remain open during the pandemic.

What is Different in the Revised Guidance.  Outlined below are some key changes to the different categories of “essential” workers. The Guidance, however, should be reviewed in full in determining whether a workforce is deemed “essential.”

  • One global change worth noting is the addition of the word “advisory.” The Guidance reemphasizes the role of State, local, tribal, and territorial decision-making for specific COVID-19 related concerns in particular jurisdictions -- effectively acknowledging that certain areas of the country have been hit harder than others and may need to provide narrower categories. As such, State and local orders still govern, and businesses should check the states and municipalities in which they operate to see if that entity follows the Guidance.
  • The Guidance still contains the 14 sectors contained in the initial version issued on March 19. These are: (1) Healthcare / Public Health; (2) Law Enforcement, Public Safety, and Other First Responders; (3) Food and Agriculture; (4) Energy; (5) Water and Wastewater; (6) Transportation and Logistics; (7) Public Works and Infrastructure Support Services; (8) Communications and Information Technology; (9) Other Community or Government-Based Operations and Essential Functions; (10) Critical Manufacturing; (11) Hazardous Materials; (12) Financial Services; (13) Chemical; and (14) Defense Industrial Base. However, employers in these industries should review the revised “essential workforce” list carefully, because the revisions expand what workforce is “essential.” For example:
    • Healthcare - the Guidance adds workers at retail facilities specializing in medical goods and supplies, among others;
    • Law Enforcement - now includes private security staff to maintaining building security, as well as manufactures and suppliers of law enforcement and safety equipment;
    • Transportation - a number of transportation roles were added, including bus drivers, and workers critical to the rental and leasing of vehicles;
    • Communications - retail customer services personnel are now essential if they are responsible for helping customers with remote emergency communications needs; and
    • Critical Manufacturing - three new categories of workers were added, including those necessary to manufacture medical equipment and personal protective equipment.
  • The Guidance also adds three additional sectors: Commercial Facilities, Residential/ Shelter Facilities and Services, and Hygiene Products and Services: 
    • Commercial Facilities - which includes but is not limited to workers in: the supply chain of building materials, supporting ecommerce, hardware and building materials stores, consumer electronics, technology and appliances retail, and related merchant wholesalers and distributers, and those distributing, servicing, repairing and installing residential HVAC systems, boilers, furnaces and other heating, cooling refrigeration and ventilation equipment.
    • Residential/Shelter Facilities and Services - which includes but is not limited to workers in: dependent care services, who support food, shelter, and social services and other necessities of life, animal shelters, leasing of residential properties, property management and maintenance, housing construction, services in support of the elderly and disabled, and those supporting the construction of housing.
    • Hygiene Products and Services - which includes but is not limited to workers: who produce hygiene products, work in laundry services, provide household repair and maintenance, provide disinfection services, who install or maintain or manufacture water and space heating equipment and its components, and janitorial/cleaning personnel.

Employer Takeaways. The COVID-19 landscape continues to rapidly evolve at the federal, state and local level. Companies should reach out to their Seyfarth contact for solutions and recommendations on addressing compliance with these ever-changing provisions. To stay up-to-date on COVID-19 developments, click here to sign up for our daily digest.

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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