California Issues List Of Essential Critical Infrastructure Workers To Accompany The State’s March 19 Stay-At-Home Order

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Seyfarth Synopsis: On March 21, 2020, the California State Public Health Officer released a list of “Essential Critical Infrastructure Workers” that accompanies Governor Newsom’s recent Executive Order directing all but employees of certain critical businesses to remain at home.

On March 19, 2020, Governor Newsom ordered all workers to stay home unless they were needed at work to maintain continuity of operations of the federal critical infrastructure sectors.  As detailed in a prior alert, the statewide order lacked clarity about which employees, and which “critical infrastructure sectors,” were exempt from the stay-at-home order. The State Public Health Officer’s recent list provides some clarity.

The list has thirteen critical infrastructure sectors and details the “Essential Workforce” for each sector. The sectors and some of the workforce highlights are:

• Healthcare / Public Health. The essential workers include all health care providers, caregivers, hospital personnel, along with manufactures, warehouse operators, and distributors of medical equipment and devices.
• Emergency Services Sector. The essential workers include first responders, as well as private security services, and plumbers, electricians, and exterminators necessary to maintain sanitation.
• Food and Agriculture. The essential workers include a broad segment of workers who sell, produce, and distribute food and other essential products.
• Energy. The essential workers include a number of specific workers in the electricity industry, petroleum workers, as well as natural gas and propane workers.
• Water and Wastewater. The essential workers include employees needed to operate and maintain drinking water supplies, and the wastewater and drainage infrastructure.
• Transportation and Logistics. The essential workers include a broad base of workers involved in providing transportation, servicing vehicles, as well as those involved in shipping, mailing, and distributing products for wholesale or retail sale or use.
• Communications and Information Technology. The essential workers include employees who maintain communications infrastructure, support media services, data center operators, and workers responding to cyber incidents.
• Other Community-Based Government Operations And Essential Functions. This is a catch-all category that notably includes hotel workers, the building trades, legal and accounting professional services, and commercial retail stores that supply other essential sectors.
• Critical Manufacturing. The essential workers include workers necessary for manufacturing medical supplies, food, chemicals, energy, and communications equipment.
• Hazardous Materials. The essential workers include those managing medical waste and other hazardous materials.
• Financial Services. The essential workers include those involved in processing financial transactions, providing consumers access to banking, and others who support financial operations.
• Chemical. The essential workers including those who support the chemical and gas supply chains.
• Defense Industry Base. The essential workers include workers in the aerospace, mechanical and software engineering industries who are required to meet national security commitments to the federal government and U.S. Military.

Unlike the March 19, 2020 federal guidance issued by the CISA, the State Public Health Officer’s list touches on some uniquely Californian industries, such as entertainment and cannabis.

The California Executive Order is not a paradigm of clarity. The FAQs accompanying it, however, strongly suggest that the State Public Health Officer’s list defines the scope of employees who can still travel to work. The FAQs note that if “your business or organization is in the list of exempt sectors, it may still operate,” providing a link to the Public Health Officer’s list of Essential Critical Infrastructure Workers. 

But California employers deciding if their employees can still come to work should not just rely on the State Public Health Officer’s list or the Governor’s Executive Order.  As we have detailed here, here, here, and here, many California counties and cities have issued their own stay-at-home orders that may place further restrictions on who can come to work. For the latest information directly from the counties, start here.

We will continue to monitor developments further effecting which employees can continue to come to work in California. We encourage employers with questions to reach out to Seyfarth’s deep bench of lawyers for advice.