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).
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.”
The Memorandum provides that essential critical infrastructure workers in the electricity industry include, among others:
For the petroleum industry, the Memorandum describes workers engaged in the following activities as essential:
For the natural gas and propane industries, the Memorandum lists the following:
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.
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.
J. Daniel Skees