Statewide Order to Stay Home Prompts Questions Regarding Critical Infrastructure and Worker Classifications

March 20, 2020

Downey Brand COVID-19 News and Updates

Please note that the State has provided additional guidance on critical infrastructure worker designations. See updated Legal Alert here.

On March 19, Governor Newsom adopted Executive Order N-33-20​ (“Order”) directing that all Californians stay at their home or place of residence, “except as needed to maintain continuity of operations of the federal critical infrastructure sectors.” The Order is effective immediately and has no end date.

Critical infrastructure sectors whose work may be exempted from the Order include public safety; water and wastewater; food and agriculture; dams; energy; transportation; communication; and critical manufacturing, among others. Participation in a critical sector does not itself exempt an individual or business’s compliance with the Order: that participation must be necessary to maintain continuity of these critical infrastructure sectors. The Order does not define which activities might fall within that scope.

Notwithstanding that uncertainty, some outside resources provide guidance on the Order’s scope and implementation. First, the Order is explicitly intended to be consistent with a non-binding federal advisory memorandum of the same date which identifies a preliminary list of “Essential Critical Infrastructure Workers” for state and local officials to consider when implementing COVID-19 related restrictions. Those recommended essential critical infrastructure workers include healthcare providers; law enforcement personnel; food sanitation and manufacturing employees; workers at energy generation facilities; petroleum workers; mass transit workers; water distribution and treatment facility staff; public works employees; communication infrastructure workers, among others.

The Order also follows a series of more specific county-level orders for residents to shelter-in-place or otherwise restrict movement.  Those orders, in general, recommend or require local residents to stay home and/or practice social distancing, but identify and exempt certain essential functions and industries that should continue operating despite the order.  The more general state order is unlikely to upend the classifications identified in those local orders (though in some jurisdictions, the State order may prove more restrictive). The local orders, read against the latest State guidance, should provide some insight as to those categories of employee and industry deemed most critical at the local level.

Statewide, businesses and agencies will need to determine not only whether they are part of a critical infrastructure category, but also will need to evaluate what operations are needed to maintain continuity of that operation, and whether any reductions or modifications are appropriate.  On this issue, the Order also incorporates by reference less formal existing online federal guidance on the identification of essential critical infrastructure workers by businesses and local governments. That guidance cautions that although local governments should pay close attention to critical functions in their community’s supply chain and public services, the work of ensuring continuity of critical infrastructure “is not focused on maintaining business as usual nor is it trying to sustain the operating capacity of non-critical businesses and industries.”

Additional State guidance regarding the scope and implementation of the Order is expected in the coming days. Whatever that scope may be, it is clear that many businesses and agencies will be facing swift modifications to their staffing and operations as they work to comply. As you adapt your operations to this new environment, Downey Brand’s attorneys are available to assist.