March 20, 2020

With various US jurisdictions taking disparate approaches to containing the COVID-19 pandemic, businesses are being forced to navigate a patchwork of orders and declarations dictating which operations are “essential”—and therefore exempt from any closure orders—and which are not.  

While federalism concerns prevent the imposition of a nationwide directive limiting the operation of businesses within individual states’ borders, the US Department of Homeland Security (DHS) had attempted to create some consistency through the publication on March 19 of its Guidance on the Essential Critical Infrastructure Workforce (the DHS Guidance).  Though expressly advisory in nature, the Guidance contains a list of “crucial infrastructure sectors and the essential workers needed to maintain the services and functions Americans depend on daily and that need to be able to operate resiliently during the COVID-19 pandemic response.”  And in fact, within hours of its official publication, Governor Newsom of California adopted the DHS Guidance as the basis for Executive Order N-33-20, which directs all individuals in California to stay home except as needed to maintain continuity of operations in connection with the sector identified in the DHS Guidance.

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