As of this writing, over 30 states and many local jurisdictions have issued orders requiring the closure of many businesses and directing individuals to stay at home except for essential or life-sustaining activities (closure orders).
For a list of state orders and legislative actions, click here. Each of these orders contains some exception for businesses that are deemed essential to the country’s response to the COVID pandemic, the national defense, domestic security, sanitation, communications and other key industries. While the earliest such orders used varied terminology to describe those exempt industries (see our earlier alert here), orders issued after March 19, 2020 have generally coalesced around guidance on “critical infrastructure sectors” published by the U.S. Department of Homeland Security’s Cybersecurity and Infrastructure Security Agency (CISA) published on that date. The CISA guidance identified as “essential critical infrastructure workers” broad classes of workers in several critical infrastructure sectors. Most closure orders adopted since the CISA guidance was published have expressly exempted workers identified in the guidance, permitting those workers to travel to and engage in their work, and allowing those employers to continue to operate in order to serve their critical mission. For example, see Louisiana order here.
While the CISA guidance provided helpful standardization of approach, it was not a model of clarity, nor was it ever intended to be CISA’s last word on the subject. In fact, when publishing the guidance, CISA requested comment from stakeholders so that the document could be amended to sharpen its focus, or to include sectors that were not explicitly included in the March 19 guidance. Perhaps the chief shortcoming of the initial attempt was that it did not adequately take into account the modern supply chain dynamic. Critical infrastructure sectors were clearly identified, but the suppliers to those sectors often were not. The definition of “critical manufacturing” in the original guidance was a broad catch-all: “workers necessary for the manufacturing of materials and products needed for” certain listed critical infrastructure sectors.
On March 28, 2020, CISA amended its March 19 guidance document to provide much more granularity for certain critical infrastructure sectors identified in its earlier guidance, and to add several new sectors to the list. A comparison of the two documents is available here. The amendment expands the list of critical infrastructure worker categories from nine to thirteen pages. In particular, the Energy and Critical Manufacturing categories are substantially expanded. Critical Manufacturing now clearly includes workers engaged in metal production, mining, and “workers who produce or manufacture parts or equipment that supports continued operations for any essential services and increase in remote workforce.” The new CISA guidance was expressly cited in Florida Governor DeSantis’ order on April 1 here.
Not all states will necessarily accept the expanded CISA guidance as a modification of existing closure orders. The guidance document remains “just guidance.” However, the expanded scope of the document may allow some businesses that closed to reopen.
