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Federal Government Provides Guidance on Essential Businesses During COVID-19 Outbreak

Federal Government Provides Guidance on Essential Businesses During COVID-19 Outbreak Background Decorative Image

The Federal Cybersecurity and Infrastructure Security Agency (CISA), an agency under the Department of Homeland Security, released advisory guidance on March 19, 2020, and updated the guidance on March 23, to help state and local governments identify essential business operations that remain exempt from shelter in place or other restrictions imposed as a result of COVID 19. While multiple states have already taken action with respect to shelter-in-place orders to slow the spread of the virus, CISA’s action may serve to bring greater consistency to state and local level actions as containment efforts continue to rapidly evolve. California is already following the guidance, having tied its shelter-in-place order to CISA’s list of sixteen sectors while reserving the right to designate additional sectors. Other states that recently issued shelter-in-place orders, such as Connecticut, Illinois, and Louisiana have also linked the state definition of an “essential business” to CISA’s guidance.

The March 19 guidance identifies sixteen industry sectors with workforces that support critical infrastructure. While the guidance focuses on employees performing particular job functions in support of critical infrastructure, it also identifies various industrial activities that may qualify as an essential business. The guidance states that CISA will work with businesses and state and local governments to identify other businesses that should be added to the list.

The sixteen critical infrastructure sectors include:

  1. Communications;
  2. Chemical (e.g., chemical production, transportation, and logistics);
  3. “Critical Manufacturing” which covers manufacturing facilities that produce materials and products needed for medical supply chains, transportation, energy, communications, food and agriculture, chemical manufacturing, nuclear facilities, the operation of dams, water and wastewater treatment, emergency services, and the defense industrial base (e.g., aerospace);
  4. Commercial facilities;
  5. Defense industrial base;
  6. Dams;
  7. Healthcare and public health;
  8. Emergency services (e.g., law enforcement, public safety, first responders);
  9. Energy (e.g., electric utilities, crude oil and natural gas drilling, production, processing, pipeline, transportation, terminal, storage and refining facilities, fueling stations, and environmental remediation/monitoring);
  10. Food and agriculture (e.g., food processing, packaging, and testing facilities);
  11. Information technology;
  12. Transportation and logistics systems (e.g., marine transportation, automotive repair and maintenance facilities);
  13. Financial services;
  14. Governmental facilities;
  15. Nuclear reactors, materials, and waste handling facilities; and
  16. Drinking water and wastewater treatment.

Businesses in essential sectors with workforces not yet subject to shelter in place orders should consider the following strategies to minimize the risk of workforce disruptions.

  • Continue close coordination with state and local officials (e.g., county emergency managers, state environmental agencies, state departments of health) to understand how ongoing restrictions may evolve. Across the country, local governments acted first to implement restrictions to slow the spread of COVID 19. For example, six counties in the San Francisco Bay Area imposed a shelter-in-place order two days before a state wide order was signed. Because local efforts may lead, but then also can be superseded by, state directives, close coordination with both state and local governments is key.
  • Identify products that your facilities make that either directly or indirectly support critical infrastructure and/or support essential businesses.
  • If a company has facilities that if left unattended could present public health and safety or national security risks, explain to state and local authorities why those facilities must remain open.

The March 19 guidance may provide clarity to multiple businesses as companies continue to refine their contingency and business continuity plans. As more and more states impose operating restrictions in response to COVID-19, CISA’s guidance can serve as a resource to persuade state and local authorities that a business is essential.

Please visit our Coronavirus: Preparation & Response series for additional resources we hope will be helpful.

This information is provided by Vinson & Elkins LLP for educational and informational purposes only and is not intended, nor should it be construed, as legal advice.