Department of Homeland Security CISA’s Updated Version 3.0 “Essential Critical Infrastructure Workforce: Ensuring Community and National Resilience in COVID-19 Response” Guidance

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Seyfarth Synopsis: Since our previous March 27, 2020 Legal Update, the Department of Homeland Security (“DHS”) Cybersecurity Infrastructure and Security Agency (“CISA”) released an updated advisory memorandum on identifying “Essential Critical Infrastructure Workforce” to assist state and local jurisdictions and the private sector. As clearly indicated by Christopher Krebs, the Director of CISA, the guidance is strictly advisory and not a federal directive to states, meaning that state and local governments are not required to provide the same level of recognition to these classes of workers as they issue EOs in the face of COVID-19. This Legal Update focuses on what updates have been made to the guidance in the context of the real estate industry.

Updated CISA Guidance Version 3.0

The most recent CISA guidance version 3.0 expands who is considered critical infrastructure workers in several industries. Several updates were made to the health care and public health sector, clarifying worker categories related to health care, public and environmental health, emergency medical services, and aligning related job functions. CISA guidance, version 3.0 advises that essential businesses must comply with all applicable Occupational Safety and Health Administration (“OSHA”) requirements for protecting critical infrastructure workers who remain on or return to the job during the COVID-19 pandemic. Despite the advisory nature of the CISA guidance, many states have explicitly referred to or incorporated the prior version of the CISA guidance into their own executive orders and legislative actions to define the essential critical infrastructure workforce.

Since CISA guidance version 2.0 was issued on March 28, 2020, the federal and state government response has continued to progress to combat the spread of the COVID-19 pandemic. In response to these developments, “lessons learned,” and “best practices” received from state and local government and business, CISA guidance version 3.0 adds several advisory recommendations and clarification from its prior version. All additions to CISA guidance version 3.0 are bolded below, including these general changes which are not industry specific:

• The term “workers” as used is intended to apply to both employees and contractors performing the described functions.
• Employers must comply with applicable Occupational Safety and Health Administration (OSHA) requirements for protecting critical infrastructure workers who remain on or return to the job during the COVID-19 pandemic.
• While the CDC recommends everyone wear a cloth face cover to contain respiratory droplets when around others, critical infrastructure employers must consider how best to implement this public health recommendation for source control in the workplace. For example, employers may provide disposable facemasks (e.g., surgical masks) instead of cloth face coverings when workers would need to wear masks for extended periods of time or while performing tasks in which the face covering could become contaminated.
• Essential critical infrastructure workers need sustained access to designated quarantine, containment, or restricted areas, and are exempted from curfews, shelter-in-place orders, and transportation restrictions or restrictions on movement.

CISA guidance version 3.0 recognizes industry-specific needs and has broadened its definition of the essential critical infrastructure workforce. This Legal Update focuses on the commercial and residential industry changes needed to appropriately respond to the COVID-19 pandemic. All additions to CISA guidance version 3.0 are bolded below, which broaden the commercial facilities sector list of essential critical workforce, and should be considered by the real estate industry:

• Workers supporting the operations of commercial buildings that are critical to safety, security, and the continuance of essential activities, such as on-site property managers, building engineers, security staff, fire safety directors, janitorial personnel, and service technicians (e.g., mechanical, HVAC, plumbers, electricians, and elevator).
• Management and staff at hotels and other temporary lodging facilities that provide for COVID-19 mitigation, containment, and treatment measures or provide accommodations for essential workers.
• Workers supporting the production of home cleaning, pest control, and other essential products necessary to clean, disinfect, sanitize, and ensure the cleanliness of residential homes, shelters, and commercial facilities.
• 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).
• Workers supporting ecommerce through distribution, warehouse, call center facilities, and other essential operational support functions, that accept, store, and process goods, and that facilitate their transportation and delivery.

In sum, the real estate industry and businesses must look to the CISA guidance version 3.0 to determine the specific impact on their real estate operations in light of the COVID-19 pandemic. In addition to reviewing the CISA guidance version 3.0, individual and businesses should also refer to applicable state-specific executive orders to determine if the revised CISA’s guidance version 3.0 has been incorporated.