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As many industries transition to alternate working arrangements in response to COVID-19, certain sectors and functions essential to the nation’s public health, safety and community well-being must continue to operate. The Cybersecurity and Infrastructure Security Agency (CISA) of the Department of Homeland Security recently released an initial list of “Essential Critical Infrastructure Workers” to help guide state/local officials and industry leaders on which sectors and functions should continue during the COVID-19 response. This memorandum was released after President Trump issued guidance that workers in critical infrastructure industry, as defined by DHS, “have a special responsibility” to maintain a normal work schedule.
The memo sets forth an initial, non-exhaustive list of essential workers that is intended to be advisory only. It is not intended to be a federal directive or standard. Government officials and industry leaders should “use their own judgment, informed by this list” to determine which services and functions are critical and must continue.CISA is soliciting feedback on the list (in terms of the workers listed and the sectors included) and plans to update it in response. Feedback should be sent to CISA.CAT@CISA.DHS.GOV.The preliminary list includes workers from the following sectors:
  • Healthcare/Public Health
  • Law Enforcement, Public Safety, First Responders
  • Food and Agriculture
  • Energy
  • Water and Wastewater
  • Transportation and Logistics
  • Public Works
  • Communications and Information Technology
  • Other Community-Based Government Operations and Essential Functions
  • Critical Manufacturing
  • Hazardous Materials
  • Financial Services
  • Chemical
  • Defense Industrial Base

CISA’s list was developed based on the following key principles:

  1. Response efforts to the COVID-19 pandemic are locally executed, state managed and federally supported.
  2. Everyone should follow guidance from the CDC, as well as state and local government officials, regarding strategies to limit disease spread.
  3. Workers should be encouraged to work remotely when possible and focus on core business activities. In-person, non-mandatory activities should be delayed until normal operations resume.
  4. When continuous remote work is not possible, businesses should enlist strategies to reduce the likelihood of spreading the disease. This includes, but is not limited to, separating staff by off-setting shift hours or days and/or social distancing. These steps can preserve the workforce and allow operations to continue.
  5. All organizations should implement their business continuity and pandemic plans, or put plans in place if they do not exist. Delaying implementation is not advised and puts at risk the viability of the business and the health and safety of employees.
  6. In the modern economy, reliance on technology and just-in-time supply chains means certain workers must be able to access certain sites, facilities and assets to ensure continuity of functions.
  7. Government employees, such as emergency managers, and the business community need to establish and maintain lines of communication.
  8. When government and businesses engage in discussions about critical infrastructure workers, they need to consider the implications of business operations beyond the jurisdiction where the asset or facility is located. Businesses can have sizable economic and societal impacts as well as supply chain dependencies that are geographically distributed.
  9. Whenever possible, jurisdictions should align access and movement control policies related to critical infrastructure workers to lower the burden of workers crossing jurisdictional boundaries.
Companies already are working on identifying essential personnel and documenting the need for such personnel via company letters.McGuireWoods can assist with business continuity planning and advise on documentation for essential personnel as needed.McGuireWoods has published additional thought leadership related to how companies across various industries can address crucial COVID-19-related business and legal issues.

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