CISA Releases New Guidance for Essential Critical Infrastructure

Contractors Included
One of the most important changes in the Guidance is the universal replacement of the term “employee” with “workers.” The Guidance explains its substitution of “workers” was intended to include to both employees and contractors performing the described functions. This change eliminates the often-critical distinction between employees and contractors and offers important clarification for industries that rely heavily on these contractors, such as the energy and manufacturing industries. Critical infrastructure employers may appreciate the broadening of who is an essential worker, given the need to support operations and the potential penalties and government shutdowns that could result from a worker who cannot support those operations.

Increased Obligations for Employers
Another critical aspect of the Guidance is the expectation that employers will take increased measures to provide a safe work environment for their critical workers. Specifically, the Guidance now incorporates the Occupational Safety and Health Administration’s (OSHA) continuing COVID-19 guidance, including its Control and Prevention guidance, as well as the Center for Disease Control’s (CDC) 4.10.20 Interim Guidance for critical workers.

Protection measures borrowed from the CDC include:

• Physically separating staff (the CDC recommends a minimum of six feet);
• Staggering work shift hours or days;
• Adopting flexible sick leave policies;
• Requiring sick employees to remain at home until they meet the criteria to return to work;
• Limiting reintegration of exposed employees; and
• Requiring employees to wear face coverings. Although the CDC currently recommends only non-medical cloth face coverings, the Guidance states employers should consider providing disposable facemasks (e.g., surgical masks) instead of cloth coverings when workers either need to wear these masks for extended periods or will be performing tasks in which the covering could become contaminated.

These protocols are merely advisory, however, as it is difficult to create blanket solutions for every industry. Accordingly, the Guidance encourages employers to implement organization-specific measures that will protect their workforce while meeting mission needs.

Industry-Specific Guidance

Healthcare. The Guidance has significantly reworked its Healthcare section to include many support industries that were left out in the prior versions. Namely, the Guidance clarifies that any worker required for effective clinical, command, infrastructure, support service, administrative, security, and intelligence operations across the healthcare spectrum are critical infrastructure. The Guidance names a number of worker categories not directly associated with patient care, including those involved in licensing, credentialing, transportation to healthcare facilities, managing health plans, security and cybersecurity, vendors and suppliers, and public and environmental health workers.

Manufacturing. Critical manufacturing now broadly includes any workers manufacturing or providing parts and equipment that enable the maintenance and operation of essential businesses. This definition seems to contemplate virtually any manufacturing operation that touches on other critical sectors.

Technology and Cybersecurity. Much greater emphasis has been placed on the importance of workers in technology and cybersecurity, which may be due to the increase in cyberattacks during the pandemic. At the outset, the Guidance highlights the reliance our economy places on technology, and thus categorizes information technology (IT) and operational technology (OT) workers for critical infrastructure as essential.

Energy – Petroleum, Electric, Natural Gas and Other Liquid Fuels. Changes to the energy sections are less expansive; instead, the Guidance tightens up prior versions, clarifying that the following activities are critical infrastructure:

• Workers supporting the energy sector who are needed to construct, manufacture, repair, transport, or permit the reliability, safety, and security of the energy system, including those who support safety, construction, manufacturing, transportation, permitting, operation, maintenance, engineering, physical security and cybersecurity, monitoring, and logistics;
• Power Plants: Workers and contractors supporting energy facilities that provide steam, hot water, or chilled water from power plants to customers;
• Liquefied Natural Gas (LNG) and Compressed Natural Gas (CNG): Workers providing services related to LNG and CNG;
• Fossil Fuel Infrastructure: Workers at fossil fuel infrastructure and microgrids;
• Pipelines: Transmission and distribution pipeline workers, including pump stations, operations maintenance, construction, and support;
• Storage Facilities: Workers at natural gas, CNG, LNG, and liquid fuel storage facilities, underground facilities, and other related facilities;
• Asset Security: Workers ensuring and monitoring the physical security of assets and locations associated with natural gas, propane, natural gas liquid and other liquid fuels; and
• Manufacturing: Workers involved in the manufacturing and distribution of equipment, supplies, and parts necessary for the production, maintenance, restoration, and service of petroleum, natural gas, natural gas liquids, and other liquid fuel operations and use.

Uniformity Encouraged
The Guidance also emphasizes the need for uniform guidance when determining who constitutes an essential worker. Previous guidance suggested local jurisdictions should align their policies for essential workers; now, the Guidance goes a step further, imploring local governments to adopt state guidance on essential workers to ensure uniformity. CISA currently accounts for at least 33 states and localities that have incorporated its Guidance, furthering its goal to create a common national approach.

Where adoption of a state policy is not possible, the Guidance suggests that, at a minimum, neighboring jurisdictions work to align their policies to reduce the burden of essential workers’ cross-jurisdictional movement. Ultimately, though, CISA’s Director acknowledged that “final decisions remain with state and local officials, who must determine how to balance public health and safety with the need to maintain critical infrastructure in their communities.”

Conclusion
That only 20 days elapsed since the Guidance was last amended evidences the fluidity of the rules that guide and govern decisions by essential employers during this COVID-19 crisis. Building upon its predecessors, the Guidance further expands who is a “worker” by specifically including contractors who support essential critical infrastructure and naming several new support industries that fall within essential critical infrastructure. Essential employers should also consider the effect of the Guidance’s additional instructions for providing safe work environments for essential workers. Finally, although the Guidance expressly defers to state and local governments, it nonetheless strongly encourages a cohesive approach to regulating these essential workers. Like all the orders and guidance issued during this unprecedented crisis, it remains clear that essential employers must stay attuned to further modifications to the rules that apply. Stay safe out there.

Pillsbury’s experienced multidisciplinary COVID-19 Task Force is closely monitoring the global threat of COVID-19 and providing real-time advice across industry sectors, drawing on the firm’s capabilities in crisis management, employment law, insurance recovery, real estate, supply chain management, cybersecurity, corporate and contracts law and other areas to provide critical guidance to clients in an urgent and quickly evolving situation. For more thought leadership on this rapidly developing topic, please visit our COVID-19 (Coronavirus) Resource Center.