PUBLICATIONS

As discussed in our prior alert, on March 19, 2020, California’s Governor Gavin Newsom issued a state-wide "stay at home" order ("Executive Order") requiring many, if not most, California residents to remain home. In general, the Executive Order requires individuals to stay home with two exceptions: (1) to obtain food, prescriptions, and healthcare; and (2) to maintain the continuity of operations of certain "critical infrastructure sectors."

In the Executive Order, the governor did not detail what qualifies as "critical infrastructure." Instead, he referenced general guidance from the federal Cybersecurity and Infrastructure Security Agency ("CISA"), which sets forth the 16 critical "sectors" and provided additional information as to what qualified as the "essential workforce" for the "essential critical infrastructure" sectors. That guidance is available here.

California has now issued its own guidance to help provide more clarity on the issue.

Summary of New Guidance: Since the issuance of the Executive Order, California has issued new guidance regarding what qualifies as the "essential workforce" under the 16 "critical infrastructure" sectors. The new guidance is available here.

Not surprisingly, the California guidance largely tracks the federal guidance and includes all of the "essential workforce" categories that were set forth in the federal guidance.

However, for several of the "critical infrastructure" sectors, the California guidance goes beyond the federal guidance and provides additional categories of workers who qualify as part of the "essential workforce" under the Executive Order.　

Below is a summary of the additional categories of workers that California has designated as part of the "essential workforce":

Healthcare/Public Health Sector

For the Healthcare/Public Health Sector, the following were added to the California guidance:

• Health care providers
• Behavioral health workers (including mental and substance use disorder) responsible for coordination, outreach, engagement, and treatment to individuals in need of mental health and/or substance use disorder services
• Workers who provide support to vulnerable populations to ensure their health and well-being including family care providers
• Workers performing security, incident management, and emergency operations functions at healthcare and public health facilities, who cannot practically work remotely
• Workers supporting veterinary hospitals and clinics

Notably, the federal guidance did not carve out a section for workers who provide services relating to the care and treatment of animals and pets. 

Law Enforcement, Public Safety, First Responders Sector

For Law Enforcement, Public Safety, and First Responders Sector, the following were added to the California guidance:

• Search and rescue, tactical teams including maritime, aviation, and canine units
• Public Safety Answering Points
• Fire Mitigation Activities
• Hazardous devices teams, from government and the private sector
• Private security, private fire departments, and private emergency medical services personnel
• County workers responding to abuse and neglect of children, elders, and dependent adults
• Animal control officers and humane officers

Food and Agriculture Sector

For Food and Agriculture Sector, the following was added to the California guidance:

• Workers that support 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, big box stores that sell groceries and essentials

Transportation and Logistics Sector

For Transportation and Logistics Sector, the following was added to the California guidance:

• Taxis, transportation services including Transportation Network Companies, and delivery services including Delivery Network Companies

Other Community-Based Government Operations and Essential Functions Sector

Additionally, the California guidance included and added myriad categories of workers who may perform an "essential" function:

• Critical government workers, as defined by the employer and consistent with Continuity of Operations Plans and Continuity of Government plans
• County workers responsible for determining eligibility for safety net benefits
• The Courts, consistent with guidance released by the California Chief Justice
• Workers who are critical to facilitating trade in support of the national, state, and local emergency response chain
• Workers 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
• Workers and instructors supporting academies and training facilities and courses for the purpose of graduating students and cadets that comprise the essential workforce for all identical critical sectors
• 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, construction material sources, and essential operation of construction sites and construction projects (including those that support such projects to ensure the availability of needed facilities, transportation, energy and communications; and support to ensure the effective removal, storage, and disposal of solid waste and hazardous waste)
• 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
• Workers supporting the entertainment industries, studios, and other related establishments, provided they follow COVID-10 public health guidance around social distancing
• Workers critical to operating Rental Car companies that facilitate continuity of operations for essential workforces, and other essential travel
• Workers that provide or determine eligibility for food, shelter, in-home support services, child welfare, adult protective services and social services, and other necessities of life for economically disadvantaged or otherwise needy individuals (including family members)
• Professional services, such as legal or accounting services, when necessary to assist in compliance with legally mandated activities and critical sector services
• Faith based services that are provided through streaming or other technology
• Laundromats and laundry services
• Workers at animal care facilities that provide food, shelter, veterinary and/or routine care and other necessities of life for animals

Again, the list of categories above is not the entire list of all "essential workforce" categories, only a list of the additional categories of workers that California (and not the federal agency) has specifically designated as "essential."

Recommendations:

As indicated in our recommendations in our prior alerts, we recommend the following:

• All employers in California should determine whether they are an essential or non-essential business.
• Employers that determine they are non-essential should shut down all operations apart from remote work and the minimum basic operations.
• All employers in California should implement social distancing requirements.
• Employers should also comply with any other county/state-wide stay at home orders.

FordHarrison attorneys are available to assist you in evaluating the orders. If you have any questions regarding this Legal Alert, please contact the authors, Ross Boughton, rboughton@fordharrison.com, Noah Woo, nwoo@fordharrison.com, or Min Kim, mkim@fordharrison.com. Of course, you may also contact the FordHarrison attorney with whom you usually work. Please also click here for links to other mandates issued by states and major municipalities.

FordHarrison is closely monitoring the spread of Coronavirus and has implemented continuity plans, including the ability to work remotely in a technologically secure environment when necessary, to ensure continuity of our operations and uninterrupted service to our clients. We are following all CDC guidelines and state and local laws as applicable. We are committed to ensuring the health and welfare of our clients, employees, and communities while continuing to provide our clients with the highest quality service. Please see our dedicated Coronavirus Taskforce page for the latest FH Legal Alerts and webinars on Coronavirus, as well as links to governmental and industry-specific resources for employers to obtain additional information and guidance. For more information or to be connected with a Coronavirus Taskforce attorney, please contact clientservice@fordharrison.com.