Governor’s Office Releases Updated List of “Essential Critical Infrastructure Workers”

03.21.2020

The California Governor’s Office released a revised list of “Essential Critical Infrastructure Workers” that qualify for exception from the Governor’s “Stay at Home” directive.  The much-anticipated revised list of essential workers was, for the second time in two nights, quietly posted to the State’s COVID-19 response webpage overnight with little fanfare.

The State’s “Essential Critical Infrastructure Workers” largely tracks the March 19, 2020, CISA (Cybersecurity and Infrastructure Security Agency) Memorandum on Identification of Essential Critical Infrastructure Workers During COVID-19 Response referenced in the Governor’s Executive Order and highlighted in our prior Alert.  But the Governor’s new list includes several significant new categories of workers, including an expanded list of “Other Community-Based Government Operations and Essential Functions.”  These additions and revisions bring the exceptions under the Governor’s statewide Executive Order more in line with the “Essential Business” exceptions under many of the now-familiar local public health orders issued across the state.

Some of the new categories of workers added to the list of “Essential Workers” in the State’s updated list include:

• Construction workers who support the construction, operation, inspection, and maintenance of construction sites and construction projects (including housing construction)
• Workers such as plumbers, electricians, exterminators, and other service providers who provide services that are necessary to maintaining the safety, sanitation, and essential operation of construction sites and construction projects
• Professional services, such as legal or accounting services, when necessary to assist in compliance with legally mandated activities and critical sector services
• Critical government employees, including law enforcement personnel, public safety employees, operational staff at water authorities and treatment plants, and mass transit personnel
• The Courts, consistent with guidance released by the California Chief Justice
• Private security, private fire departments, and private emergency medical services personnel
• Faith based services that are provided through streaming or other technology
• Laundromats and laundry services
• Commercial Retail Stores that supply essential sectors, including convenience stores, pet supply stores, auto supplies and repair, hardware and home improvement, and home appliance retailers
• Taxis, transportation services including Transportation Network Companies, and delivery services including Delivery Network Companies
• Workers critical to operating Rental Car companies that facilitate continuity of operations for essential workforces, and other essential travel
• Workers supporting the entertainment industries, studios, and other related establishments, provided they follow COVID-19 public health guidance around social distancing
• Workers supporting cannabis retail and dietary supplement retail

The new list also clarifies and expands certain categories of Essential Workers included in the CISA Memorandum, such as expanding “Workers supporting groceries, pharmacies, and other retail that sells food and beverage products” to include a non-exhaustive list of types of qualifying workers, “including but not limited to Grocery stores, Corner stores and convenience stores, including liquor stores that sell food, Farmers’ markets, Food banks, Farm and produce stands, Supermarkets, Similar food retail establishments, [and] Big box stores that sell groceries and essentials.” 

The new list also broadens the category of workers supporting educational institutions who are Essential Workers, replacing “Educators” with “Workers” who are “supporting public and private childcare establishments, pre-K establishments, K-12 schools, colleges, and universities for purposes of distance learning, provision of school meals, or care and supervision of minors to support essential workforce across all sectors.”  This language gives school districts, county offices of education, community college district, and other educational institutions, more flexibility in identifying those support personnel who are essential.

While the Governor’s Executive Order of March 20th had included “construction” as a critical activity only by reference to a separate state web page with ambiguous instructions, the Governor’s revised list today has resolved any concern as to inclusion of construction by clarifying the guidance on the state web page.  By adding the two new categories, noted above, of “[c]onstruction workers who support the construction, operation, inspection, and maintenance of construction sites and construction projects (including housing construction),” along with “[w]orkers such as plumbers, electricians, exterminators, and other service providers who provide services that are necessary to maintaining the safety, sanitation, and essential operation of construction sites and construction projects,” the Governor has provided much needed clarity on what construction workers and activities are currently allowed to continue.  Meanwhile, the new Order maintains the previous categories of “public works” essential functions intact.

We continue to monitor the COVID-19 developments.  If you have questions about how COVID-19 affects your business, including whether your business and its workers qualify as “Essential Workers” under the Governor’s revised list, contact the attorneys at AALRR.