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The federal government has enacted extensive COVID-related legislation but left open the question of what industries, and which workers in those industries, are deemed “essential” during the pandemic. So far those decisions have been left to individual states.
In an effort to support local governments, the Cybersecurity and Infrastructure Security Agency (CISA) promulgated “guidance on the essential critical infrastructure workforce.” The CISA list of “essential” workers is not binding on states nor does it compel prescriptive action. It is merely a guideline for state-level leadership, so that “state, local, tribal, and territorial jurisdictions” have the ultimate say on who qualifies as “essential.”
CISA designates 16 critical sectors, and generally identifies particular workers that are “essential” within those industries:
- Healthcare/Public Health
- Law Enforcement, Public Safety, and Other First Responders
- Food and Agriculture
- Energy
- Water and Wastewater
- Transportation and Logistics
- Public Works and Infrastructure Support Services
- Communications and Information Technology
- Critical Manufacturing
- Hazardous Materials
- Financial Services
- Chemical
- Defense Industrial Base
- Commercial Facilities
- Residential/Shelter Facilities and Services
- Hygiene Products and Services
CISA also includes a “catch-all” section for “Other Community or Government-Based Operations and Essential Functions,” like workers supporting judicial system operations. The list is ever evolving and “intended to be overly inclusive.”
For California, Governor Newsom’s March 19 “Stay at Home” Order made CISA’s designations law in this state. In accordance with the “Stay at Home” Order, the State Public Health Officer went further creating her own further narrowed list of essential workers. The Public Health Officer’s list includes only 12 sectors, plus a catch-all (like CISA) for “Other Community or Government-Based Operations and Essential Functions.”
Compared to CISA, California’s narrowed list excludes overarching industry profiles for Public Works and Infrastructure Support Services, Commercial Facilities, Residential/Shelter Facilities and Services, and Hygiene Products and Services. Instead, it places a limited selection of workers from those four under other headers—i.e., manufacturers of personal care/hygiene products are included under California’s “Healthcare” sector profile, and construction material suppliers under “Emergency Services – Public Works” instead of CISA’s “Commercial Facilities.” California’s list also adds some essential workers: “Food and Agriculture” includes corner stores, convenience stores, farmers’ markets, food banks, and workers supporting cannabis retail. Entertainment industry workers are also permitted to work “provided they follow COVID-19 public health guidance around social distancing.”
Separate from the governor’s “Stay at Home” order and essential workforce list, the California COVID-19 website states the following services “will remain open” notwithstanding other designations:
- Gas stations
- Pharmacies
- Food: Grocery stores, farmers markets, food banks, convenience stores, take-out and delivery restaurants
- Banks
- Laundromats/laundry services
- Essential state and local government functions will also remain open, including law enforcement and offices that provide government programs and services
The website also explains that following must be closed:
- Dine-in restaurants
- Bars and nightclubs
- Entertainment venues
- Gyms and fitness studios
- Public events and gatherings
- Convention centers
- Hair and nail salons
Other states, like Nevada and Washington, are following suit by making their own lists and incorporating CISA’s guidance.
In evaluating whether your business and workforce are essential, you must carefully read the specifics of the guidance at the federal, state, and local levels. Even if your business fits an “essential” sector, your workforce may not be essential. For example, California’s order qualifies a narrow subset of “hotel workers” as essential only if they’re working in hotels used for COVID-19 mitigation and containment. But in Colorado, all hotels and places of accommodation are deemed critical infrastructure. Within your state, cities and counties could have stricter rules—Santa Clara County put restrictions on residential and commercial buildings, deeming almost all residential projects non-essential.
Beyond that, the federal guidance encourages “essential” employers to set up remote work when possible and “focus on core business activities.” It further suggests, when continuous remote work is not possible, that businesses enlist strategies to reduce the likelihood of spreading the disease. This includes, but is not necessarily limited to, separating staff by off-setting shift hours or days and/or social distancing. State and local public health officials have additional rules in place.
Who is or is not considered “critical” is a moving target. It is best to go straight to the sources and call Payne & Fears for advice rather than rely on articles or publications that could be outdated.
Disclaimer: Laws, regulations, and guidance on matters related to COVID-19 change rapidly. Please contact your Payne & Fears attorney for current guidance.
