Governor Newsom Issues Statewide “Stay at Home” Order – Essential School/College Employees and Contractors Are Exempt

03.19.2020

If the link to the Governor's Executive Order is not working, please try: https://covid19.ca.gov/img/Executive-Order-N-33-20.pdf or https://www.gov.ca.gov/2020/03/19/governor-gavin-newsom-issues-stay-at-home-order

This evening (March 19, 2020) Governor Newsom issued a Statewide “Stay at Home” Order (Executive Order N-33-20), which “order[s] all individuals living in the State of California to stay home or at their place of residence except as needed to maintain continuity of operations of . . . federal critical infrastructure sectors, as outlined at https://www.cisa.gov/identifying-critical-infrastructure-during-covid-19 . . ..” [See https://covid19.ca.gov/img/N-33-20.pdf ]

This Alert is specific to school districts, county offices of education, and community colleges (“School Employers”).

SUMMARY

The Governor’s Order does not require closure of School Employers and other essential governmental functions. The State of California’s official COVID-19 website states:

Essential state and local government functions will also remain open, including law enforcement and offices that provide government programs and services.

https://covid19.ca.gov/stay-home-except-for-essential-needs/

Instead, School Employers should assess which employees are “essential” within the meaning of the Governor’s Order. As outlined below, educators, maintenance workers, security staff, information technology, and other employees performing “essential services,” along with contractors and others who “otherwise facilitate authorized necessary activities” are exempt from the requirement to “shelter at home” under the Governor’s Order.

School employers are encouraged to consult with legal counsel regarding the scope of the Governor’s Order. We expect further clarification from the Governor in coming days.

ANALYSIS

Educators And Other School/College Employees/Contractors Performing Essential Functions Are Exempt From The Governor’s Order

School/colleges are considered “critical infrastructure,” and must continue to provide services.

The Cybersecurity and Infrastructure Security Agency (CISA) advised today (March 19) that workers in federal critical infrastructure sectors — including many school/college employees — “have a special responsibility to maintain your normal work schedule.” [See https://www.cisa.gov/sites/default/files/publications/CISA-Guidance-on-Essential-Critical-Infrastructure-Workers-1-20-508c.pdf, p. 1.]

Essential governmental employees are exempt from the Order. The exemption for “federal critical infrastructure sectors” applies to “government facilities . . . as well as individuals who perform essential functions or possess tactical, operational, or strategic knowledge.” https://covid19.ca.gov/stay-home-except-for-essential-needs/

Many other school/college employees are specifically identified as exempt from the order. These exemptions, which appear under the heading “Other Community-Based Governmental Operations And Essential Functions”) include:

Educators supporting public and private K-12 schools, colleges, and universities for purposes of facilitating distance learning or performing other essential functions, if operating under rules for social distancing
Workers to ensure continuity of building functions
Security staff to maintain building access control and physical security measures
Local . . . employees who support Mission Essential Functions and communications networks
Workers that maintain digital systems infrastructure supporting other critical government operations
Workers at operations centers necessary to maintain other essential functions

Other exemptions which may apply to school/college employees include, but are not limited to:

Workers who support food, shelter, and social services, and other necessities of life for economically disadvantaged or otherwise needy individuals, such as those residing in shelters
Employees and firms supporting food, feed, and beverage distribution, including warehouse workers . . ..
Workers essential for assistance programs and government payments

[See CISA guidance issued March 19, 2020 —https://www.cisa.gov/sites/default/files/publications/CISA-Guidance-on-Essential-Critical-Infrastructure-Workers-1-20-508c.pdf , pp. 4, 5, 6, 10.]

Contractors and others who “otherwise facilitate authorized necessary activities” are also exempt from the Order. As stated in the Governor’s Order:

The Supply chain must continue, and Californians must have access to such necessities as food, prescriptions and health care. When people need to leave their homes or places of residence, whether to obtain or perform the functions above, or to otherwise facilitate authorized necessary activities, they should at all time practice social distancing.

[https://covid19.ca.gov/img/N-33-20.pdf]

The Order (and the CISA guidance) also further limits permissible “public works.” The details must be considered on a case by case basis. Please contact your legal counsel as to the scope of permissible ongoing “public works.”