Hunton Employment & Labor Perspectives

Employers in California continue to grapple with how to interpret Governor Gavin Newsom’s Executive Order directing all California residents to stay home, except as needed “to maintain the continuity of operations of the federal government critical infrastructure sectors.”  Since the Order came out, the state has issued and updated its list of “Essential Critical Infrastructure Workers” who are exempted from the stay-at-home restrictions for purposes of reporting to work.

As discussed in our prior post found here, Governor Newsom’s Executive Order permits workers in 16 “critical infrastructure sectors,” outlined by the Cybersecurity and Infrastructure Security Agency (CISA) to leave home for purposes of going to work. The Governor also noted that additional sectors may be designated as critical to protect the health and well-being of all Californians.

On March 20, the State Public Health Officer released initial guidance on the types of workers that qualify as “Essential Critical Infrastructure Workers” who may continue going to work.  Since then, the Guidance has been updated twice to add additional workers to those that qualify as essential, including the following:

• Workers supporting cannabis retail and dietary supplement retail
• Manufacturers, technicians, logistics and warehouse operators, and distributors of personal care/hygiene products
• Workers who support the operation, inspection, and maintenance of essential public works facilities and operations, including construction material suppliers
• Construction workers who support the construction, operation, inspection, and maintenance of construction sites and construction projects (including housing construction)
• Workers such as plumbers, electricians, exterminators, and other service providers who provide services that are necessary to maintaining the safety, sanitation, construction material sources, and essential operation of construction sites and construction projects (including those that support such projects to ensure the availability of needed facilities, transportation, energy and communications; and support to ensure the effective removal, storage, and disposal of solid waste and hazardous waste)
• Commercial retail stores, that supply essential sectors, including convenience stores, pet supply stores, auto supplies and repair, hardware and home improvement, and home appliance retailers
• Workers supporting the entertainment industries, studios, and other related establishments, provided they follow COVID-19 public health guidance around social distancing
• Workers critical to operating rental car companies that facilitate continuity of operations for essential workforces, and other essential travel
• Taxis, transportation services including transportation network companies, and delivery services including delivery network companies
• Workers supporting public and private childcare establishments, pre-K establishments, K-12 schools, colleges, and universities for purposes of distance learning, provision of school meals, or care and supervision of minors to support essential workforce across all sectors
• Professional services, such as legal or accounting services, when necessary to assist in compliance with legally mandated activities and critical sector services
• Workers supporting grocery stores, corner stores and convenience stores, including liquor stores that sell food, farmers’ markets, food banks, farm and produce stands, supermarkets, similar food retail establishments, and big box stores that sell groceries and essentials

In addition to these changes, California has also designed as essential employees who work at veterinary hospitals and animal-care facilities, laundromats, certain academies and training facilities, and faith-based services. The current California guidance also includes additional information regarding law enforcement, public safety, and government workers.

The full list of Essential Critical Infrastructure Workers can be found here.

In light of the state’s evolving guidance, it is important for employers in California to periodically revisit this list to assess whether their business falls within an exemption from the Governor’s Executive Order.