As state governors in California, New York, and Illinois issued "Stay at Home" Orders and limited activity to essential activities, services, and businesses, the Cybersecurity and Infrastructure Security Agency (CISA) issued a Guidance on March 19, 2020 intended to assist state and local officials in ensuring continuity of critical functions, while safeguarding economic and national security during the COVID-19 response. Under the Homeland Security Act of 2002, CISA is responsible for providing strategic guidance and coordination of federal effort to ensure the security and resilience of U.S. critical infrastructure.
The Guidance describes a broad range of vital operations and essential services to ensure continuity and viability of critical infrastructure, such as maintaining and repairing critical infrastructure and manufacturing and distributing critical supplies to key critical infrastructure sectors. Although the Guidance is advisory in nature and is not intended to serve as a federal directive or standard, the states of Ohio, Michigan, and Louisiana have incorporated the essential workforce designations offered by CISA into their respective "Stay at Home" Orders and other states may follow a similar approach. CISA identifies an Essential Workforce to sustain U.S. critical infrastructure as follows:
1. Health Care/Public Health – including caregivers, hospital/laboratory personnel, manufacturers and distributors of medical equipment, personal protective equipment (PPE), cleaning/sterilization supplies, and laboratory/testing supplies
2. Law Enforcement, Public Safety, First Responders – including emergency management, law enforcement, fire, hazardous materials remediation, and corrections
3. Food and Agriculture – including groceries, pharmacies, food manufacturers and distributors (including animal feed), and carry-out and food delivery workers
4. Energy – including the electricity industry (generation, transmission, restoration), petroleum and propane/natural gas (drilling, production, refining, storage, transporting)
5. Water and Wastewater – including workers to operate and maintain drinking water and wastewater/drainage infrastructure, water sampling/monitoring, and digital systems infrastructure supporting same
6. Transportation and Logistics – including maintenance/repair/inspections, logistics operations (cooling, storing, packaging, and distribution), maritime/automotive/rail/air
7. Public Works – operation, inspection, and maintenance of essential public works facilities and operations (including bridges, water and sewer main breaks, fleet maintenance personnel, construction of critical or strategic infrastructure, traffic signal maintenance, emergency location services for buried utilities, maintenance of digital systems infrastructure supporting public works operations)
8. Communications and Information Technology – including maintenance of communications infrastructure (public and private communications systems, call centers, wireline and wireless providers, cable service providers, satellite operations, undersea cable landing stations, Internet Exchange Points, and manufacturers and distributors of communications equipment), media (internet, radio, television), information technology (network, broadcast, and security operations, data center operations, cybersecurity and cyber incident response)
9. Community-based Government Operations and Essential Functions – including educators, Federal, State, and Local, Tribal, and Territorial employees who support Mission Essential Functions and communications networks, elections, customs, trade
10. Critical Manufacturing – including manufacturing of materials and products needed for medical supply chains, transportation, energy, communications, food and agriculture, chemical manufacturing, nuclear facilities, the operation of dams, water and wastewater treatment, emergency services, and the defense industrial base
11. Hazardous Materials – including nuclear facilities, workers managing medical waste, workers managing waste from pharmaceuticals and medical material production, and workers at laboratories processing test kits
12. Financial Services – including processing and maintaining systems for processing financial transactions and services (e.g., payment, clearing, and settlement; wholesale funding; insurance services; and capital markets activities), consumer access to banking and lending services, including ATMs, and support of financial operations, such as staffing data and security operations centers
13. Chemical – including chemical and industrial gas facilities and supply chains (including transport of basic raw chemical materials to the producers of industrial and consumer goods, including hand sanitizers, food and food additives, pharmaceuticals, textiles, and paper products), safe transportation of chemicals, production of protective cleaning and medical solutions, personal protective equipment, and packaging that prevents the contamination of food, water, and medicine, among other essential products
14. Defense Industrial Base – including workers who support the essential services required to meet national security commitments to the federal government and U.S. Military (aerospace, mechanical and software engineers, manufacturing/production workers, IT support, security staff and personnel, intelligence support, aircraft and weapon system mechanics and maintainers), contractors and subcontractors to the Department of Defense (providing materials and services and government-owned/contractor-operated and government-owned/government-operated facilities)
The Baker Donelson Government Enforcement and Investigations Group continues to monitor the COVID-19 response and advise clients on determining whether workforces may qualify as Essential Critical Infrastructure workforces that may be exempt from "Stay at Home" Orders. If you have any questions, please contact any member of the Government Enforcement and Investigations Team. Also, please visit the Coronavirus (COVID-19): What You Need to Know information page on our website.