On Friday April 17, the federal government (through the Department of Homeland Security’s Cybersecurity & Infrastructure Security Agency, or CISA) updated its guidance on what services should be considered a part of the critical essential infrastructure and remain ongoing.
For the first time, CISA’s federal guidance includes commercial construction as a part of the nation’s critical infrastructure.
CISA also greatly expands what qualifies as essential construction services in the energy sector.

As noted in Construction During COVID-19: Is It Essential?, CISA issued an advisory memorandum and guidance on what services should be considered as a part of the “Essential Critical Infrastructure Workforce.” CISA’s purpose in issuing the guidance was to “help state and local officials as they work to protect their communities, while ensuring continuity of functions critical to public health and safety, as well as economic and national security.” Because many states reference or incorporate the CISA guidance into their own state executive orders and directives, it is important to stay up to date on provisions relating to construction. Moreover, some states incorporate a specific version of the CISA guidance and may continue to rely on older versions of the guidance until adopting the later guidance. (For example, in Indiana, Executive Order 20-08 initially ordered the closure of non-essential businesses and referenced the original CISA guidance. Executive Order 20-18 superseded Order 20-08 and, among other things, referenced the CISA guidance that was updated on March 28. In contrast, Florida’s Executive Order Number 20-91 attaches CISA Guidance 2.0 but specifically incorporates “and any subsequent lists published” by CISA.)

The CISA guidance, which was originally issued on March 19, included very few construction-specific services. When it updated its Guidance on March 28, CISA added construction in multiple sectors. And in its most recent update, on April 17, CISA greatly expanded the construction that is considered critical. Below, is an overview of the CISA guidance (and revisions) as they relate to the construction industry.

CISA’s cover memorandum states that its attached advisory list identifies workers and services that are “typically essential to continued critical infrastructure viability,” and recites examples of those services, which broadly includes “working construction.” CISA’s attached guidance, however, did not broadly include construction as a critical service. Rather, the guidance listed specific types of construction tied to certain industries.

Original CISA Guidance

The original CISA guidance identified workers across 14 industry sectors: (1) health care/public health; (2) law enforcement, public safety, and first responders; (3) food and agricultural; (4) energy; (5) water and wastewater; (6) transportation and logistics; (7) public works and infrastructure support services; (8) communications and information technology; (9) other community- or government-based and operations and essential functions; (10) critical manufacturing; (11) hazardous materials; (12) financial services; (13) chemicals; and (14) defense industrial base.

Of the 14 sectors in the original CISA Guidance, only two included construction-related activities:

  • [Public Works and Infrastructure Support] Workers who support … construction of critical or strategic infrastructure
  • [Communications and Information Technology] Engineers, technicians and associated personnel responsible for infrastructure construction and restoration, including contractors for construction and engineering of fiber optic cables

CISA Guidance 2.0

On March 28, CISA issued version 2.0 of its guidance, adding three more industry sectors: (1) commercial facilities; (2) residential/shelter facilities and services; and (3) hygiene products and services. Guidance 2.0 also greatly expanded construction-related services considered a part of the Essential Critical Infrastructure Workforce, adding the following:

  • [Energy] Workers supporting the energy sector through renewable energy infrastructure … including those supporting construction.
  • [Energy/Electricity Industry] Providing services related to energy sector fuels … supporting the mining, processing, manufacturing, construction.
  • [Energy/Petroleum Industry/Natural Gas] Supporting new and existing construction projects, including, but not limited to, pipeline construction.
  • [Public Works and Infrastructure Support] Workers who support … construction of critical or strategic infrastructure.
  • [Public Works and Infrastructure Support] Workers such as plumbers, electricians, exterminators, builders, contractors, HVAC Technicians, landscapers, and other service providers who provide services that are necessary to maintaining the safety, sanitation, and essential operation of residences, businesses and buildings such as hospitals, senior living facilities, any temporary construction required to support COVID-19 response.
  • [Communications…] Engineers, technicians and associated personnel responsible for infrastructure construction and restoration, including contractors for construction and engineering of fiber optic cables, buried conduit, small cells, other wireless facilities, and other communications sector-related infrastructure.
  • [Other Community or Government-Based Operations and Essential Functions] Workers supporting essential maintenance, manufacturing, design, operation, inspection, security, and construction for essential products, services, and supply chain and COVID-19 relief efforts.
  • [Residential…] “Workers performing housing construction related activities to ensure additional units can be made available to combat the nation’s existing housing supply shortage”
  • [Residential…] “Workers supporting the construction of housing…”

Even with the expanded list of workers and services, not all forms of construction were considered critical or essential under CISA’s Guidance 2.0.

CISA Guidance 3.0

On April 17, CISA’s issued version 3.0 of its guidance, which expanded the categories of construction workers that are considered critical. Most notably, CISA’s advisory list now includes:

Workers performing housing and commercial construction related activities, including those supporting government functions related to the building and development process, such as inspections, permitting, and plan review services that can be modified to protect the public health, but fundamentally should continue and enable the continuity of the construction industry (e.g., allow qualified private third-party inspections in case of federal government shutdown).

The emphasized text above is new to Guidance 3.0. Oddly, this revision falls within the residential sector, not the commercial sector, yet it clearly deems commercial construction as a part of the critical infrastructure.

CISA’s Guidance 3.0 also expands the construction services deemed critical within the Energy sector. The prior guidance limited critical construction to services supporting renewable projects, pipeline construction, and construction supporting fuels. The latest guidance more broadly considers critical any construction workers (and those who support construction) who are “supporting the energy sector, regardless of the energy source…”

Additionally, CISA Guidance 3.0 appears to expand the list of “supporting” construction services, such as on-site property managers, building engineers, and service technicians in various construction sectors, including energy, electrical, and public works.

As CISA notes in its guidance, its advisory list is merely that—guidance and advice on how the states and local governments implement and execute response activities. For that reason, it is important to consult state executive orders and directives related to construction services.

Note, on May 19, CISA issued Version 3.1 of its guidance, which did not have any major impact on construction, as described here.

Pillsbury’s Construction Counseling & Dispute Resolution team will continue to monitor developments in governmental guidance and orders as they relate to construction in this ever-evolving landscape of COVID-19.

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.

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