The latest updates and analysis from Morrison Foerster
March 20, 2020 - Coronavirus

COVID-19 Update: New California Order and DHS Critical Infrastructure Guidance

Updated Coronavirus (COVID-19) Guidelines For Employers

As we noted in an earlier post, various states and localities are issuing rapidly evolving directives on the extent to which businesses may continue ordinary operations in their jurisdictions and which businesses are exempt from those directives (or subject to less restrictive obligations).  The Governor of California has now issued an executive order, directing all individuals in the state to remain in their places of residence.  This order, however, expressly exempts those “needed to maintain continuity of operations of the federal critical infrastructure sectors,” as well as any other additional sectors the Governor may designate.

The federal critical infrastructure sectors to which the Governor refers comprise 16 areas identified by the U.S. Department of Homeland Security (DHS) as essential for the country to function.  These sectors include the Defense Industrial Base, as well as other activities that federal contractors frequently perform.  Just yesterday, DHS issued new guidance on the importance of businesses within these sectors maintaining a normal work schedule, insofar as possible.  The guidance also provides useful advice for identifying workers in those sectors.  The DHS guidance stresses that it is advisory in nature and recognizes “that State, local, tribal, and territorial governments are ultimately in charge of implementing and executing response activities in communities under their jurisdiction, while the Federal Government is in a supporting role.”  But, as the new California executive order demonstrates, state and local authorities are rapidly recognizing the importance of crafting public health orders that do not impede the performance of federal employees, contractor personnel, and others who keep these 16 critical infrastructure sectors functioning at full capacity.

The 16 federal critical infrastructure sectors are:

  1. Chemical
  2. Commercial Facilities
  3. Communications
  4. Critical Manufacturing
  5. Dams
  6. Defense Industrial Base
  7. Emergency Services
  8. Energy
  9. Financial Services
  10. Food and Agriculture
  11. Government Facilities
  12. Healthcare and Public Health
  13. Information Technology
  14. Nuclear Reactors, Materials, and Waste
  15. Transportation and Logistics
  16. Water and Wastewater Systems