Over the weekend, the Cybersecurity & Infrastructure Security Agency (CISA) issued updated guidance expounding on its classification of workers who are essential to the nation’s critical infrastructure viability during the COVID-19 crisis. As discussed in our previous alert and blog post, CISA has identified 16 key infrastructure sectors that should continue operations to protect U.S. health and public safety and economic and national security. While CISA’s updated guidance remains non-binding, companies would be wise to consider how it may influence “stay-at-home” orders in their local jurisdictions.
As an initial matter, CISA’s updated guidance clarifies that beyond being “advisory in nature” it 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.” The updated guidance stresses, “Individual jurisdictions should add or subtract essential workforce categories based on their own requirements and discretion.” In other words, even if a specific type of worker or service is not mentioned by CISA, states and municipalities are free to declare that such workers and services are “essential” and exempt from stay-at-home orders. That said, many stay-at-home orders, such as Maryland’s recent order, almost entirely rely on CISA’s guidance to distinguish between “essential” and “non-essential” businesses. Other jurisdictions will likely continue to reference CISA’s evolving guidance as they both implement and amend their stay-at-home orders.
One of the biggest changes to CISA’s updated memorandum is a heavier emphasis on the construction and manufacturing industries. Residential construction and home building are now explicitly included. CISA also specifies the essential role of construction workers supporting the renewable energy, petroleum and natural gas, and communications sectors, among others. The updated guidance further recognizes “builders” and “contractors” necessary to maintaining “the safety, sanitation, and essential operation” of “businesses and buildings such as hospitals, senior living facilities, [and] any temporary construction required to support COVID-19 response.” Lastly, CISA makes provision for “workers who support the supply chain of building materials from production through application/installation.”
Other highlights of the updated CISA guidelines include identification of workers in all segments of the energy and fuel sectors (including nuclear, hydroelectric, renewable, coal, and gas), as well as the mining and onshore/offshore drilling industries. The new guidance also recognizes such diverse industries as residential and commercial real estate, hygiene and sanitation, firearms and ammunition, e-commerce, and dependent care services “in support of workers in other essential products and services.”
Since CISA updated its guidance, multiple new orders have been issued by various states and local governments, including Maryland, Tennessee, Virginia, and Washington, D.C. Each order contains its own definition of what types of businesses are “essential.” More states and local governments are expected to continue issuing new or amended orders in response to coronavirus concerns. Companies included within CISA’s updated memorandum would be wise to carefully review CISA’s guidelines — subject to statewide or local stay-at-home orders — and adapt their staffing and business decisions to ensure they continue to perform essential functions and thus remain open.
It is also important to be proactive. Companies and industries may need to engage government officials and key decision-makers to ensure that business operations are deemed “essential.” Even if such operations are not currently deemed “essential,” there may be opportunities to seek a waiver. Additionally, many of these orders will likely be amended, and there may be an opportunity to seek inclusion in a subsequent amendment.
Bradley can advise on how these determinations may apply to your business and how best to comply with them. The Governmental Affairs and Construction practice groups are actively monitoring developments in this area and engaging with federal, state, and local governments on behalf of clients to help ensure their businesses are considered essential. Please contact Ryan Robichaux, Chris Selman, or Jackson Hill if you have any questions or would like to discuss the COVID-19 policy process.