Governor Newsom’s Updated List of “Essential Critical Infrastructure Workers” Includes Government Employees

03.23.2020

The California State Public Health Officer published a revised list of “Essential Critical Infrastructure Workers”, in accordance with the Executive Order issued by Governor Newson on March 19, 2020 directing all residents to stay home to address the rapidly growing threat of the Coronavirus (“COVID-19”).  This expanded list of essential employees provided important guidance on which sectors of the economy, and which employees, qualify as “essential.”

As we noted in our initial alert published on March 20, 2020, Governor Newsom’s Executive Order exempted “essential critical infrastructure workers” and cited to a March 19, 2020, CISA (Cybersecurity and Infrastructure Security Agency) Memorandum on Identification of Essential Critical Infrastructure Workers During COVID-19 Response, but did not provide further clarity.  The Public Health Officer includes several important new categories of employees that may continue to operate during the statewide stay-home orders.  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.  Of interest to the public sector, several types of government employees were explicitly identified in the guidance issued by Governor’s Office and State Public Health Officer.

Relevant categories of employees added to the list of “Essential Workers” include:

• Healthcare Industry Personnel, such as —
  • Health care providers and caregivers, including physicians, mid-level practitioners, nurses and assistants, infection control and quality assurance personnel, and diagnostic technicians and technologists.
  • Hospital and laboratory personnel, including accounting, administrative, admitting and discharge, epidemiological, food service, medical records, information technology and operational technology, sanitarians, and respiratory therapists.
  • Workers that manage health plans, billing, and health information, who cannot practically work remotely.
• Emergency Services Personnel, such as —
  • Law Enforcement, including front line and management and tactical teams.
  • Fire Department workers, including search and rescue.

• Public Workers Personnel, such as —
  • Employees who support the operation, inspection, and maintenance of essential dams, locks and levees.
  • Employees who support the operation, inspection, and maintenance of essential public works facilities, including bridges, water and sewer main breaks, fleet maintenance personnel, and construction of critical or strategic infrastructure.
  • Employees, including engineers and other service providers, who provide services that are necessary to the sanitation, safety, and essential operation of residences.
• Energy Sector Personnel, such as natural and propane gas workers.
• Water and Wastewater Personnel, such as —
  • Operational staff at water authorities.
  • Operational staff at community water systems.
  • Operational staff at wastewater treatment facilities.
  • Operational staff at wastewater collection facilities.
• Transportation and Logistics Personnel, such as —
  • Mass Transit and Passenger Rail workers, including terminals, operational systems, and supporting infrastructure for passenger services by transit buses, light rail, passenger rail, and vanpool/rideshares.
  • Employees supporting or enabling transportation functions, including dispatchers, maintenance and repair technicians, warehouse workers, and workers that maintain or inspect infrastructure.
  • Workers responsible for operating dispatching passenger trains and maintaining rail infrastructure and equipment.
• Government Operations, such as —
  • Critical government workers, as defined by public employers and consistent with the “Continuity of Operations Plans and Continuity of Government” plans.
  • Court system personnel, consistent with the guidance issued by the California Supreme Court’s Chief Justice.
  • Workers to ensure continuity of building functions.
  • County workers responsible for determining eligibility for safety net benefits.

Each of these sectors of “essential workers” includes “workers that maintain digital systems infrastructure” supporting the specific operation.

Public Entity Employer’s Response to Statewide Shelter in Place Order

This more detailed guidance confirms that several types of public entity employees are exempt from the Governor’s Executive Order, and can continue operations at public employer facilities.  As we indicated in our initial alert, public entity employers would be well advised to implement several changes to address the challenges posed by the current COVID-19 crisis.  For example, we recommend that public entity employers assess whether they can transition sections of their personnel to work remotely.  Our firm can provide assistance in preparing Telecommuting Agreements and Policies, or reviewing leave of absence policies or arrangements if remote work arrangements are not feasible.  Public employers should ensure that they adopt and follow neutral, consistent factors to ensure that the process remains nondiscriminatory. 

Regardless of the measures taken, public entity employers must ensure that social distancing is practiced at all times, in which employees maintain a distance of at least six feet between each other.  (https://www.cdph.ca.gov/Programs/CID/DCDC/CDPH%20Document%20Library/Gathering_Guidance_03.11.20.pdf.)

The State of California’s response to the COVID-19 pandemic is rapidly evolving.  Public entity employers are encouraged to reach out to AALRR for assistance regarding the impact of the Public Health Officer’s revised list on a particular agency, or whether a category of employees qualifies as exempt.  Our firm can also provide assistance in reviewing an agency’s compliance with recently passed House Resolution 6201, or other employment-related questions concerning COVID-19.