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Californians to Shelter in Place: But Critical Infrastructure Businesses to Continue

March 20, 2020

In a bold and historic move, California has become the first state in the nation to issue a “stay at home” order in response to the COVID-19 pandemic. Specifically, on the evening of March 19, 2020, Governor Gavin Newsom issued Executive Order N-33-20 (the “Order”), which directs Californians to remain at home or at their place of residence until further notice, except as needed to “maintain continuity of operations of the federal critical infrastructure sectors.” (See link to Order, below.) This Order has left many California employers asking, “Can my employees report to work without violating the Order?”

The answer depends on whether an employer is in one of the “16 critical infrastructure sectors.” These critical sectors are businesses “whose assets, systems, and networks, whether physical or virtual, 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.” Briefly, the critical sectors identified as excepted from the Order are:

  • Chemical
  • Commercial Facilities
  • Communications
  • Critical Manufacturing
  • Dams
  • Defense Industrial Base
  • Emergency Services
  • Energy
  • Financial Services
  • Food and Agriculture
  • Government Facilities
  • Healthcare and Public Health
  • Information Technology
  • Nuclear Reactors, Materials, and Waste
  • Transportation Systems
  • Waste and Wastewater Systems

More information about the Order and these critical sectors can be found here: https://covid19.ca.gov/img/Executive-Order-N-33-20.pdf; https://www.cisa.gov/critical-infrastructure-sectors. The Order notes that the Governor may designate additional sectors as “critical.”

According to the Order, California employees working in these 16 critical infrastructure sectors may continue their work ”because of the importance of these sectors to Californians’ health and well-being.” The Order refers to a March 19, 2020, Memorandum on Identification of Essential Critical Infrastructure Workers During COVID-19 Response (the “Memorandum”) issued by Christopher C. Krebs, the Director of the U.S. Department of Homeland Security’s Cybersecurity and Infrastructure Security Agency, that provides further guidance on the critical infrastructure workforce.  Importantly, this Memorandum notes that continued functioning of critical infrastructure is imperative to the public health and safety and to community well-being. As a result, critical infrastructure industries have a special responsibility to continue operations.

The Memorandum contains an initial list of “Essential Critical Infrastructure Workers” that identifies workers who conduct a range of operations and services that are essential to continued critical infrastructure viability. Stated differently, this list identifies the workers who may continue reporting to work despite the Order. The Memorandum can be accessed here: https://www.cisa.gov/publication/guidance-essential-critical-infrastructure-workforce.  Until further guidance is issued, it remains unclear whether the Executive Order is intended to permit all workers within the 16 critical infrastructure sectors to continue working, or only those whose services are essential, and conversely whether workers who fit within the critical infrastructure worker description may continue to work, even if they are not employed within one of the 16 critical infrastructure sectors.

California employers are encouraged to consult the critical infrastructure list and plan operations and staffing accordingly. Employers should also note the following key guidelines specific to employers identified in the list:

  • Workers should be encouraged to work remotely when possible and focus on core business activities. In-person, non-mandatory activities should be delayed until the resumption of normal operations.
  • When continuous remote work is not possible, businesses should enlist strategies to reduce the likelihood of spreading the disease. This includes but is not limited to separating staff by off-setting shift hours or days and/or social distancing. These steps can preserve the workforce and allow operations to continue.
  • All organizations should implement their business continuity and pandemic plans or put plans in place if they do not exist. Delaying implementation is not advised and puts at risk the viability of the business and the health and safety of the employees.
  • Everyone should follow guidance from the CDC, as well as state and local government officials, regarding strategies to limit disease spread.

Employers (and their employees) in a growing list of cities and counties are also becoming subject to local “stay at home” or “shelter in place” orders. Employers should consult those governmental orders as well when determining whether to maintain operations and, if so, in what capacity. The attorneys at Sacks, Ricketts & Case are available to assist with any questions that might arise for employers during these challenging and dynamic times.

For further information about the above cases and recently enacted legislation, please contact your SRC employment attorney.

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The contents of this newsletter are intended for general informational purposes only and should not be construed as legal advice or a legal opinion.  You are advised to consult an attorney about any specific legal question.