Critical Infrastructure Workers: Possible Documentation to Authorize Travel During Restrictions

March 25, 2020

Over the past days and weeks, various US state and local governments have issued orders that restrict travel and certain gatherings in an effort to slow the spread of the coronavirus (COVID-19). Although those orders have largely excepted, among others, individuals who are employed by industries that provide critical infrastructure, a lack of uniformity among those orders—and their piecemeal, jurisdictional nature—has caused some confusion. Recent guidance issued from the US Department of Homeland Security aims to reduce this confusion.

In an effort to provide more uniformity regarding who is (and is not) an “essential critical infrastructure worker,” and to provide federal guidance that state and local governments could reference in forthcoming orders, the Cybersecurity & Infrastructure Security Agency (CISA), an operational component under the US Department of Homeland Security, issued a Memorandum on Identification of Essential Critical Infrastructure Workers During COVID-19 Response (Memorandum).

Who Is an “Essential Critical Infrastructure Worker” under the Memorandum?

As we previously noted in a post on our Up & Atom blog, the Memorandum provides that essential critical infrastructure workers are not only those who operate critical infrastructure (i.e., generation, transmission, and distribution facilities), but also those who “support” that operation.

Accordingly, the Memorandum suggests that employees of utilities who support utility operations (i.e., keeping the lights on and the gas flowing)—and their vendors and service providers assisting in those tasks—are properly considered “essential critical infrastructure workers” in the context of the COVID-19 response effort.

Explicitly recognizing that vendors and service providers to the energy industry are essential, the Memorandum provides that essential critical infrastructure workers include, among others, “workers necessary for the manufacturing of materials and products needed for . . . energy [and] nuclear facilities,” and even more broadly, “[w]orkers at nuclear facilities.” 

Electricity Industry

The Memorandum provides that essential critical infrastructure workers in the electricity industry include, among others:

  • Workers who maintain, ensure, or restore the generation, transmission, and distribution of electric power, including call centers, utility workers, reliability engineers, and fleet maintenance technicians
  • Workers needed for safe and secure operations at nuclear generation facilities
  • Workers at generation, transmission, and electric blackstart facilities
  • Workers at Reliability Coordinators, Balancing Authorities, and primary and backup Control Centers, including independent system operators and regional transmission organizations
  • Mutual assistance personnel
  • IT and OT technology staff for Energy Management Systems (EMS) and Supervisory Control and Data Acquisition (SCADA) systems, and utility data centers; cybersecurity engineers; and cybersecurity risk management personnel
  • Vegetation management crews and the traffic workers who support them
  • Environmental remediation/monitoring technicians
  • Instrumentation, protection, and control technicians

Petroleum Industry

For the petroleum industry, the Memorandum describes workers engaged in the following activities as essential:

  • Petroleum product storage, pipeline, marine transport, terminals, rail transport, and road transport
  • Crude oil storage facilities, pipeline, and marine transport
  • Petroleum refinery facilities
  • Petroleum security operations center employees and workers who support emergency response services
  • Petroleum operations control rooms/centers
  • Petroleum drilling, extraction, production, processing, refining, terminal operations, transporting, and retail for use as end-use fuels or feedstocks for chemical manufacturing
  • Onshore and offshore operations for maintenance and emergency response
  • Retail fuel centers such as gas stations and truck stops, and the distribution systems that support them

Natural Gas and Propane Industries

For the natural gas and propane industries, the Memorandum lists the following:

  • Natural gas transmission and distribution pipelines, including compressor stations
  • Underground storage of natural gas
  • Natural gas processing plants, and those who deal with natural gas liquids
  • Liquefied natural gas (LNG) facilities
  • Natural gas security operations center, natural gas operations dispatch and control rooms/centers, and natural gas emergency response and customer emergencies, including natural gas leak calls
  • Drilling, producing, processing, refining, and transporting natural gas for use as end-use fuels, feedstocks for chemical manufacturing, or use in electricity generation
  • Propane gas dispatch and control rooms and emergency response and customer emergencies, including propane leak calls
  • Propane gas service maintenance and restoration, including call centers
  • Processing, refining, and transporting natural liquids, including propane gas, for use as end-use fuels or feedstocks for chemical manufacturing
  • Propane gas storage, transmission, and distribution centers

State and Local Travel Restrictions

Several states—including California and Maryland—have issued travel restrictions that explicitly reference the CISA guidance; the broader adoption of the guidance by additional states and localities would provide a uniform approach to travel restrictions as applied to essential critical infrastructure workers.

However, the CISA guidance is not binding on individual states, and therefore compliance with individual state requirements is essential, regardless of whether that guidance identifies the Memorandum. Nevertheless, because the situation remains in flux and because CISA was established in large part to ensure that critical infrastructure across the United States continues to operate resiliently in the face of threats, this guidance can assist the electric, nuclear, oil, and gas utility industries in identifying their essential workers and functions, and justifying those identifications to state and local authorities.

In states and localities that have imposed travel restrictions, essential critical infrastructure workers might choose to carry a letter or notice issued by their employer that identifies them as such. Because travel restrictions have been enacted at both state and local levels, letters identifying personnel as essential critical infrastructure workers should identify the order imposing the travel restriction and the relevant exception in that order.

Coronavirus COVID-19 Task Force

For our clients, we have formed a multidisciplinary Coronavirus COVID-19 Task Force to help guide you through the broad scope of legal issues brought on by this public health challenge. We also have launched a resource page to help keep you on top of developments as they unfold. If you would like to receive a daily digest of all new updates to the page, please subscribe now to receive our COVID-19 alerts.  


Please contact any of the authors of this post or your regular Morgan Lewis contact if you have questions or need assistance with such matters.

Washington, DC
J. Daniel Skees