Keenan Briefings

Briefings

Updated March 30, 2020: Governor Newsom’s Statewide Stay at Home Order Exempts Essential Critical Infrastructure Workers

March 23, 2020

A new executive order from California Governor Gavin Newsom now imposes more stringent statewide public health and safety guidance in response to the COVID-19 pandemic. His March 19 proclamation “orders 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 Department of Homeland Security. This critical infrastructure exemption from the stay at home order includes employees of local governments, schools, county offices of education (COEs), community colleges, and healthcare providers whose responsibilities fall under the essential categories.

All employers will need to assess the categories of employees considered “essential” within the scope of this executive order. Exempted categories of healthcare workers may include:

  • Workers providing COVID-19 testing
  • Caregivers (physicians, dentists, psychologists, mid-level practitioners, nurses and assistance, infection control and quality assurance personnel, pharmacists, physical and occupational therapists and assistants, social workers, speech pathologists and diagnostic and therapeutic technicians and technologists)
  • Workers in other medical facilities (including ambulatory health and surgical, blood banks, clinics, community mental health, comprehensive outpatient rehabilitation, End Stage Renal Disease, health departments, home health care, hospices, hospitals, long term care, organ pharmacies, procurement organizations, psychiatric residential, rural health clinics and Federally Qualified Health Centers)
  • Workers performing cybersecurity functions at healthcare and public health facilities, who cannot practically work remotely
  • Workers performing security, incident management, and emergency operations functions at or on behalf of healthcare entities who cannot practically work remotely
  • Pharmacy employees necessary for filling prescriptions

Exempted Categories of Law Enforcement, Public Safety, and First Responders may include:

  • Personnel in emergency management, law enforcement, Emergency Management Systems, fire and corrections, including front line and management
  • Emergency Medical Technicians
  • 911 call center employees
  • Fusion center employees
  • Hazardous material responders from government and the private sector
  • Workers—including contracted vendors—who maintain digital systems infrastructure supporting law enforcement and emergency service operations

Exempted categories of Local Education Agency (LEA) employees may include:

  • Educators facilitating distance learning or other essential functions as long as they are maintaining the rules of social distancing
  • Maintenance workers essential to continuing building operations, including janitorial/cleaning personnel
  • Security staff responsible for physical facilities security and controlling building access
  • Information technology workers responsible for computer systems operation, communications networks and cybersecurity
  • Other employees and contractors performing “essential services”
  • In some districts, exemptions may also apply to workers who support food, shelter, social services, and other necessities of life for economically disadvantaged or otherwise needy individuals, such as those residing in shelters

The Governor’s order states that workers in the critical infrastructure sectors may continue their work because they are important to the health and well-being of Californians. However, in the performance of these essential activities, they should at all times practice social distancing to mitigate the impact of COVID-19. Where possible, workers should be encouraged to work remotely. When continuous remote work is not possible, enlist strategies to reduce the likelihood of spreading the disease, such as separating staff by offsetting shift hours or days.

The Governor’s Executive Order can be found at:

https://covid19.ca.gov/img/N-33-20.pdf

UPDATE: The State of California has set up a website with the most up-to-date guidance on essential workforce. It includes the Governor’s order, as FAQs and additional guidance. The site can be found at:

https://covid19.ca.gov/stay-home-except-for-essential-needs/

The federal guidance on the Essential Critical Infrastructure Workforce can be found at:

https://www.cisa.gov/sites/default/files/publications/CISA-Guidance-on-Essential-Critical-Infrastructure-Workers-1-20-508c.pdf

Employers are encouraged to consult their legal counsel regarding the scope of the Governor’s order and federal critical infrastructure worker guidance.


Keenan & Associates is not a law firm and no opinion, suggestion, or recommendation of the firm or its employees shall constitute legal advice. Clients are advised to consult with their own attorney for a determination of their legal rights, responsibilities and liabilities, including the interpretation of any statute or regulation, or its application to the clients’ business activities.