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Whether a Business May Continue Operating Under Stay-at-Home Orders ... (and what is "CISA"?)

In the past days, states and municipalities have issued various emergency and stay-at-home orders to require isolation and, where appropriate, social distancing. These orders effectively close many businesses except for a few minimum operations. The main order now in place for California employers is Governor Newsom's March 19 Stay-at-Home order, which is posted online here.


This leaves employers wondering whether they may continue operating, and what will happen to their workforce.


Governor Newsom's order, like other similar statewide orders appearing this week, prohibits non-home-based work in businesses not specifically allowed under its terms. It allows continued operation of businesses within the "Essential Critical Infrastructure."


"Essential Critical Infrastructure" refers to a broad set of sixteen "Sectors" and their interdependent businesses and resources. The concept behind the system is that many types of disasters (such as terrorism, military attack, natural events, and pandemic) could cripple entire categories of national operation (such as healthcare or transportation) by degrading even small important parts of the system. Each Sector is dependent on certain other Sectors (such as water and energy).


This system is defined and administered by the Cyberstructure and Infrastructure Security Agency ("CISA"), an arm of the Department of Homeland Security.


The various essential Sectors, descriptions of their operations, and the documents defining each Sector are on CISA's website, located here. The site contains guidance:


"intended to support State, Local, and industry partners in identifying the critical infrastructure sectors and the essential workers needed to maintain the services and functions Americans depend on daily and need to be able to operate resiliently during the COVID-19 pandemic response."

CISA maintains a page providing guidance here (which is cited in multiple state-wide orders such as CA and IL), and Governor Newsom's office has published its own guidance here.


Employers should review these materials, which actually permit a very broad set of infrastructure-important activities, to determine whether they arguably fall within the COVID-administered system.


We also believe that employers should continue their compliance with local ordinance, such as those discussed in our blog posting here, in addition to the state order(s) except where they conflict with state mandate. For example, we believe that a worker needed to support state-approved critical infrastructure in one county may travel out of or through another to work.


We also encourage employers to prepare a document employees may carry explaining that they work for the business in a particular position, that the business performs certain essential infrastructure functions, a description of the functions and why they are allowed, the address of the business and areas where the employee works, and a contact at the business for further information. This may assist employees traveling from home to work or while performing their duties. The same document should be carried by staff performing essential minimal operations under local orders, such as securing inventory or processing payroll while business is suspended.


We will continue watching developments and update this post as necessary.