On the evening of March 19, 2020, California Governor Gavin Newson issued Executive Order N-33-20, which requires 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 the federal critical infrastructure sectors,” as outlined by the Cybersecurity and Infrastructure Security Agency (CISA). This order, which applies to 40 million California residents, is intended to slow the spread of the novel Coronavirus (COVID-19). In issuing the Order, Governor Newsom suggested that 56 percent of Californians (more than 25 million people) could be infected over the next eight weeks. Although the Order states it is to go into effect immediately and shall stay in effect until further notice, Governor Newsom also emphasized this is “not a permanent state.”
CISA’s 16 Critical Infrastructure Sectors
CISA identifies 16 critical infrastructure sectors whose assets, systems, and networks are considered so vital to the United States that their incapacitation or destruction would have a debilitating effect on security, national economic security, national public health or safety, or any combination thereof. CISA lists the 16 critical infrastructure sectors on its website, including:
- Chemical: including workers in chemical manufacturing plants, laboratories, and distribution facilities;
- Commercial Facilities: including workers in the motion picture studios, casinos, theme and amusement parks, and stadiums;
- Communications: including workers involved with the maintenance of communications infrastructure like technicians, operators, and call-centers;
- Critical Manufacturing: including workers in the primary metals, machinery, electrical equipment, and transportation equipment industries;
- Dams: including workers in hydroelectric power generation, municipal and industrial water supplies, and agricultural irrigation;
- Defense Industrial Base: including workers in the research, development, design, production, delivery and maintenance of military weapons systems;
- Emergency Services: including personnel in emergency management, law enforcement, fire, and 911 call centers;
- Energy: including workers in the electricity, oil, and natural gas industries;
- Financial Services: including workers involved with processing financial transactions and services;
- Food and Agriculture: including workers supporting groceries, pharmacies, restaurants with carry-out, and farms;
- Government Facilities: including workers who ensure continuity of government building functions, elections personnel, trade officials, and weather forecasters;
- Healthcare and Public Health: including workers providing COVID-19 testing, physicians, dentists, psychologists, nurses, hospital and laboratory personnel, and pharmacy employees;
- Information Technology: including workers who support command centers and data center operators;
- Nuclear Reactors/Materials/Waste: including workers at nuclear facilities and who support hazardous materials response and cleanup;
- Transportation Systems: including workers who support or enable transportation functions, like dispatchers and truck stop workers, as well as mass transit workers; and
- Water and Wastewater Systems: including workers who operate and maintain drinking water and wastewater drainage, like staff at water authorities and systems.
For additional clarity, CISA’s website includes for each sector a sector-specific plan that describe the types of services that are deemed essential within those sectors. Moreover, the Order explains that California may designate additional sectors as “critical” if needed.
Also on March 19, CISA issued “Guidance on the Essential Critical Infrastructure Workforce: Ensuring Community and National Resilience in Covid-19 Response.”[1] CISA also issued a series of “FAQs” regarding its guidance, which are available here. As reflected in the list above, CISA’s guidance speaks to both the federal critical infrastructure sectors and the workers needed to maintain it. This indicates that not all workers who perform services in these sectors may be deemed critical, and therefore some individuals may be required to stay home.
Additional Considerations
When can Californians leave their homes?
The Order explains that Californians are permitted to leave their homes to access necessities such as food, prescriptions, and health care. It further explains that if individuals must leave their homes, whether because they are employed in the critical infrastructure sectors or for another permissible reason, they should practice social distancing. In a press conference on March 19, Governor Newsom indicated Californians may still go outside for exercise or (for example) to walk their dogs, but they must practice social distancing. In this regard, the Order appears consistent with the Shelter-In-Place orders issued by six Bay Area counties earlier this week.
Do I still have to follow my California city/county shelter in place order?
As of March 20, over 20 California cities and counties have issued their own shelter in place orders, including:
Because Order N-33-20 indicates it is meant to establish a statewide standard[2], it seems apparent it preempts other city and county orders to the extent there is a conflict, although the Order does not explicitly address preemption. San Francisco has attempted to offer some clarity on this issue. On March 20, San Francisco Mayor London Breed affirmed that Order N-33-20 is complementary to San Francisco’s order, and therefore San Francisco residents should continue to comply with the local order. We will continue to monitor for any updates.
Are there special considerations for the healthcare industry?
The Order also states that the State’s healthcare delivery system shall prioritize services to serving those who are the sickest and shall prioritize resources, including personal protective equipment, for the providers providing direct care to them.
How will the Order be enforced?
In terms of enforcement, the Order states that California’s Office of Emergency Services is directed to take necessary steps to ensure compliance with the Order, and further states it will be enforceable by CA law, including but not limited to Gov’t Code section 8865, which states that any person who violates, refuses or willfully neglects to obey the Order shall be guilty of a misdemeanor and if convicted, shall be punishable by a fine not to exceed one thousand dollars ($1,000) or by imprisonment not to exceed six months (or both).
We will continue to monitor developments in this area. Stay tuned for updates.
[1] Although the CISA’s website, to which Executive Order N-33-20 cites, includes “Commercial Facilities” as a critical infrastructure, CISA’s March 19, 2020 guidance does not. Similarly, CISA’s website includes “Dams” as a critical infrastructure sector, although “Dams” is not listed as a separate sector in the guidance. We will continue to monitor for any additional clarification.
[2] See Executive Order N-33-20 (“…all residents are directed to immediately heed the current State public health directives, which I ordered the Department of Public Health to develop for the current statewide status of COVID-19”).
