• Michael Kennedy Esq.

Navigating the Waters of COVID-19 Essential Employees

What constitutes an essential worker under COVID-19 pandemic rules varies from state to state, city to city, and in some cases, minute to minute. This might not directly affect businesses during the shelter in place, however, the issue will soon become significant as the economy begins to gear up. Some industries have hastily set up static resource centers, but as government positions change, company pandemic procedure plans will have to adapt.

Industry’s Letter to States and Municipalities

In an attempt for uniformity, industry groups called for states and municipalities to follow the Department of Homeland Security’s (DHS) Guidance on the Essential Critical Infrastructure Workforce. They urged states to “directly adopt the definition of ‘critical infrastructure’ as defined by the DHS as a floor and commit to keep these critical manufacturing facilities open across the nation.”

The definition of “critical infrastructure” has always been a moving target. According to the Critical Infrastructure Projection Act of 2001, the term “critical infrastructure” means “systems and assets, whether physical or virtual, so vital to the United States that the incapacity or destruction of such systems and assets would have a debilitating impact on security, national economic security, national public health or safety, or any combination of those matters.”[1]

In essence, over 100 industry trade associations are asking states to apply a liberal definition of “critical infrastructure” which provides no substantive guidance to states, nor does it clarify the confusion of essential employee guidance.

What industry should have asked for, is more direction and leadership from the administration to have their guidance adhered to. In this case, given the structure of our government, it would be more prudent to have the federal government lead and bind the states and municipalities than the other way around. Or, at minimum, ask DHS to negotiate with them on a streamlined approach. Since the issuance of the letter, some orders changed due to industry pressure; some changed as the pandemic has worsened; and some governors have clarified obtuse orders. Regardless, there is little cohesiveness.

Guidance Documents vs. State Executive Orders

It is important to make the legal distinction between guidance documents and state executive orders. First, DHS’s administrative guidance is non-binding advice given to the public regarding how best to comply with a particular law or regulation. In sum, it is a toothless tiger king. This stands in contrast to a state executive order, such as a shelter in place order, which could penalize an individual or entity up to a Class C misdemeanor.

Should Industry be Asking the President to Exercise More Emergency Powers?

This is a highly debated topic. Congress has already delegated to the President a host of important pandemic related powers. On March 13th, The President declared Coronavirus a National Emergency. Thus, the following powers are bestowed to him through law. For example, Trump has already tapped the Defense Production Act to give the government more power to steer production by private companies and try to overcome shortages in masks, ventilators and other supplies.

Also the President may use the Public Health Service to such extent and in such manner as shall in their judgment promote the public interest; or President may, by Executive Order declare the commissioned corps of the Public Health Service to be a military service.

However, most Republicans and businesses are not keen on more government control. Furthermore, under the 10th amendment to the Constitution, “[t]he powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.”

In the next coming weeks/months, we will see these issues arise and collide. Hopefully, with helpful guidance, a functional pandemic preparedness plan and some luck we will make it through this alright.

[1] 42 U.S. Code § 5195c.


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