ESSENTIAL ACTIVITIES
FPLG COVID-19 RESPONSE
ESSENTIAL ACTIVITIES
[UPDATE: May 26, 2020]
All employers, including nonprofits, have been struggling with keeping up with the changing rules and laws applicable during the COVID-19 pandemic.
But just in the past week or so, the pace of “reopenings” has accelerated around the nation, including in California. The definition of “essential activities” will change or at least somewhat fade.
This is a rapidly developing story and we’ll be updating it frequently as the new rules begin to come into focus.
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[April 6, 2020]
In this pandemic, the threshold question is whether a particular business or organization is exempted from the stay-at-home orders in California and most other states.
Before Governor Newsom’s statewide order on March 19, 2020, certain local jurisdictions and regions had already imposed broadly restrictive orders on activities. The Governor’s Declaration “brought myriad county and city public-health directives under a single umbrella” [and] “created a modicum of order to what had been patchwork of local responses, some specific, some less so.”
There is still no nationwide order; in any event, the individual states have the authority to act on these matters. The state’s order takes precedence, but doesn’t preclude local governments from enacting more stringent requirements that are consistent with the Governor’s Executive Order.
Based on the order of California’s public-health chief, there are 13 sectors designated as “Essential Critical Infrastructure” and the workers in those sectors are permitted to continue working. There is a federal list of 16 “critical infrastructure” designations which is advisory only. California’s list, to a large extent, reflects the federal designations.
“Businesses and organizations falling under the critical infrastructure categories “need not receive special authorization from the state to continue operations.”
The COVID-19 pandemic has forced the nation to walk a tightrope. We have been asked to reconcile the interests of businesses and employees with stringent public health requirements needed to contain the spread of the novel coronavirus.
— Martin Levine, NPQ (5/26/20)
If a business is deemed essential, that ‘gives the employer much more discretion in terms of what they can ask employees to do’ [but it’s] a big gray area.’
— Sacramento Bee quoting James McGlamery, Esq. (3/20)
The comprehensive list ranges from first responders to restaurant delivery people and includes — yes — cannabis retail workers.
— CalMatters (3/20)
REFERENCES & RESOURCES
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Are Defense Contractor Workers Essential? (May 26, 2020) Martin Levine, The Nonprofit Quarterly
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(CA) List of Essential Critical Infrastructure Workers
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City of San Diego Executive Order 2020-2 (March 30, 2020)
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County of San Diego COVID-19 Public Health Order (Updated March 29, 2020); Addendum 2 (April 3, 2020)
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Employment Update: What California Businesses Need to Know About Operating During the COVID-19 Crisis (March 24, 2020) Wendel Rosen LLP
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What Counts as an ‘Essential Business’ in California? (March 23, 2020) Jill Cowan, The New York Times: CA Today
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5 Tips for California Employers Facing COVID-19 Concerns (March 23, 2020) Katherine S. Catlos, SHRM
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California Under Stay-At-Home Order, Shutting Down Non-Essential Businesses (March 22, 2020) Fisher Phillips LLP
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Who is ‘essential’ now that Californians have to stay home? (Updated March 22, 2020) CalMatters
- Executive Order N-33-20 (March 19, 2020) CA Governor Gavin Newsom
- Guidance on the Essential Critical Infrastructure Workforce: Ensuring Community and National Resilience in COVID-19 Response (March 19, 2020) U.S. Department of Homeland Security Cybersecurity & Infrastructure Security Agen
- City of San Diego Executive Order 2020-1 (March 16, 2020)
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