Complying with the Evolving and Conflicting COVID-19 State Closure Landscape; CISA Updates List of Essential Critical Infrastructure Workers
Over the last two weeks, COVID-19 state business closure orders, which we are tracking on our 50-State interactive guide, and their related stay at home orders, have come at a fast and furious pace. From just a handful at the beginning of last week, all but about 11 states have issued some combination of a stay at home, business closure mandate. In addition, the orders begin expiring next week, and with the federal extension of social distancing guidelines until April 30, it is expected that starting next week, states will begin issuing extensions of their closure/stay at home orders and potentially adopt other updates as well.
As reflected in our guide, these orders generally fall into one of several categories, with elements common to each. The typical formulation requires closure of all non-essential businesses, requiring residents to stay at home, except for certain limited activities, including travel to and from work for essential businesses that may remain open under the applicable order. In addition, teleworking is virtually universally permitted under these orders. Even for businesses that are required to close, minimal basic operations are typically allowed, which are those necessary to allow the business to maintain the value of its inventory, ensure security, process payroll and employee benefits, or for related functions, including, for example, supporting employee teleworking. While the vast majority of state closure orders require closure of businesses across the economy except those defined as essential under the particular order, a small subset of the closure orders is more limited in scope, applying only to some combination of restaurants, non-essential retail businesses, entertainment and recreational businesses and venues (so-called “public facing” businesses).
A key question under these orders is whether a particular business is defined as essential or non-essential. While some orders include their own lists, many of the state orders rely on non-mandatory guidance provided by the U.S. Department of Homeland Security, Cybersecurity & Infrastructure Security Agency (CISA) contained in its Memorandum on Identification of Essential Critical Infrastructure Workers During COVID-19 Response. This guidance, commonly referred to as the CISA List, sets out a detailed list by sector of the businesses and worker functions that are deemed essential. The CISA List was first released on March 19, and a version 2.0 was issued by CISA on March 28 based on input from industry and others, which included a number of additional sectors and functions not included on the original list, as well as an increased focus on the critical supply chains in each of the sectors.
Law enforcement, for example was broadened to include “other first responders”, and now includes a broad range of entities that manufacture and supply equipment and services for law enforcement and first responders. In the energy sector, the revised list added workers in natural gas, natural gas liquids, propane, and other liquid fuels, and specifically called out the broad categories of functions that supply and support the overall energy sector. These include trading, scheduling and marketing functions, IT support, the provision of services supporting the sector, environmental remediation and monitoring functions, and the manufacture and distribution of equipment, supplies and parts necessary to all segments of the sector.
Also added to the list were workers in commercial facilities that support the supply chain for building materials, e-commerce, workers in hardware and building materials stores, consumer electronics, technology, and appliance retailers, their wholesalers and distributors, as well as commercial residential heating and cooling businesses and suppliers. Finally, CISA added to the list residential/shelter facilities and services, and providers of hygiene products and services. According to comments from CISA’s Director made at an industry presentation earlier this week, it is expected that version 2.0 will remain set for at least the next couple of weeks, though it could potentially be further refined.
In almost all cases, the business closure order requires social distancing and other COVID-19 health-related guidelines for essential businesses that remain open. Orders typically list specific requirements (e.g., maintenance of 6-foot separation), and in many cases reference and require compliance with a particular state’s department of health guidelines or the OSHA/HHS Guidance on Preparing Workplaces for COVID-19.
The orders also vary considerably in enforcement mechanisms and sanctions. For example, while some of the closure orders are silent on enforcement, others provide specific criminal enforcement and penalties, classifying a violation of the order as a misdemeanor, including providing for imprisonment and escalating penalties for violations that involve a COVID-related death. In addition, the orders may also provide for civil penalties, as well as closure orders for violations of social distancing and health-related requirements.
In a number of cases, local governments (cities, counties) have taken action with their own business closure and stay at home orders prior to the state imposing statewide orders. This has led to a potentially confusing issue of which order applies in any given location. Some orders have been explicit as to “preemption,” while many have remained silent.
In the case of such “overlapping” orders, two key potential compliance issues we have seen involve whether a specific facility is deemed essential under a particular state’s order, and the stay at home requirements applicable to a particular employee. The facility itself may have a state and local order applicable to it, and each employee likewise may have a state and local order applicable to it, particularly where employees commute from other cities, counties, or states (or must travel for training or other support).
For example, if the facility is in a jurisdiction with a closure order, then the facility must qualify as an "essential business" under that order to remain open and operating. If it does not qualify, then it must close (subject to any minimum basic operations provisions). In addition, there may be both a local order in the city/county where the facility is located and an applicable state order, as well. In such cases, the state order must be reviewed to determine if it preempts the local orders in that state. Some states have taken the position that the state order preempts the local (e.g., Georgia, South Carolina). In other cases, the order may provide that both orders stand, with the more restrictive one controlling in a particular locality with its own order (e.g., North Carolina). If the facility’s employees live in different cities, counties, or states, then the employees may be under different orders than the facility, and in order to be able to leave their homes to travel to work, the facility must then also satisfy the "essential business" criteria of the order(s) applicable to the particular employee.