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Thompson Hine LLP, a full-service business law firm with approximately 400 lawyers in 8 offices, was ranked number 1 in the category “Most innovative North American law firms: New working models” by The Financial Times and was 1 of 7 firms shortlisted for The American Lawyer’s inaugural Legal Services Innovation Award. The firm has been recognized by the National Law Journal as a Legal Technology Trailblazer and featured by Bloomberg for its innovative service delivery models, which drive accuracy and predictability. The firm’s commitment to innovation is embodied in Thompson Hine SmartPaTHTM – a smarter way to work – predictable, efficient and aligned with client goals. For more information, please visit ThompsonHine.com and ThompsonHine.com/SmartPaTH.

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The U.S. Department of Homeland Security (DHS) issued guidance on March 19, 2020 for the identification of essential, critical infrastructure workers during the COVID-19 response. The DHS guidance and related memorandum provide considerations for government and business, following White House guidance issued on March 16, which stated:

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If you work in a critical infrastructure industry, as defined by the Department of Homeland Security, such as healthcare services and pharmaceutical and food supply, you have a special responsibility to maintain your normal work schedule.

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The DHS guidance, “Guidance on the Essential Critical Infrastructure Workforce: Ensuring Community and National Resilience in COVIC-19 Response,” Version 1.0, and related memorandum are available <a href="https://www.cisa.gov/sites/default/files/publications/CISA-Guidance-on-Essential-Critical-Infrastructure-Workers-1-20-508c.pdf">here</a>.

The DHS guidance and memorandum were issued by the Cybersecurity &amp; Infrastructure Security Agency (CISA), which has responsibility to coordinate the overall federal effort to ensure the security and resilience of the nation's critical infrastructure.

Accordingly, CISA has developed a list of “Essential Critical Infrastructure Workers” to help state and local officials identify those workers and to “inform critical infrastructure community decision-making to determine the sectors . . . or critical functions that should continue normal operations, appropriately modified to account for Centers for Disease Control and Prevention (CDC) workforce and customer protection guidance.” The Guidance states:

Functioning critical infrastructure is imperative during the response to the COVID-19 emergency for both public health and safety as well as community well-being. Certain critical infrastructure industries have a special responsibility in these times to continue operations.

This guidance and accompanying list are intended to support state, local, and industry partners in identifying the critical 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.

This document gives guidance to state, local, tribal, and territorial jurisdictions and the private sector on defining essential critical infrastructure workers. Promoting the ability of such workers to continue to work during periods of community restriction, access management, social distancing, or closure orders/directives is crucial to community resilience and continuity of essential functions.

The DHS list identifies workers who are essential to continued critical infrastructure viability. The industries and sectors covered by the list include (but are not limited to) medical, healthcare and public health; law enforcement, public safety and first responders; food and agriculture; energy; water and wastewater; transportation and logistics; public works; communications and information technology; government operations; manufacturing; hazardous materials; financial services; the chemical sector; and the defense industrial base.

The CISA memorandum states that “State, local, tribal, and territorial governments are ultimately in charge of implementing and executing response activities in communities under their jurisdiction, while the Federal Government is in a supporting role.” This is a key aspect of the federal guidance. Accordingly, the CISA memorandum states that the list is advisory in nature, and is not a federal directive or standard, but is meant to inform decisions:

As State and local communities consider COVID-19-related restrictions, CISA is offering this list to assist prioritizing activities related to continuity of operations and incident response, including the appropriate movement of critical infrastructure workers within and between jurisdictions.

The identified sectors and workers are not intended to be an authoritative list of critical infrastructure functions that should continue during the COVID-19 response, but rather, “State and local officials should use their own judgment in using their authorities and issuing implementation directives and guidance.” Likewise, under the DHS guidance industry must use its own judgment, informed by CISA guidance and state and local directives, as stated by the CISA memorandum:

Similarly, critical infrastructure industry partners will use their own judgment, informed by this list, to ensure continued operations of critical infrastructure services and functions. All decisions should appropriately balance public safety while ensuring the continued delivery of critical infrastructure services and functions.

The CISA list of sectors and identified essential critical infrastructure workers are an “initial recommended set and are intended to be overly inclusive reflecting the diversity of industries across the United States.” CISA will accept feedback on the list and will modify the list in response to stakeholder comments. Feedback from stakeholders can be sent to <a href="mailto:CISA.CAT@CISA.DHS.GOV">CISA.CAT@CISA.DHS.GOV</a>.

Related information from CISA is available <a href="https://www.cisa.gov/identifying-critical-infrastructure-during-covid-19">here</a>:

Joseph R. Berger 202.263.4193 <a href="mailto:Joseph.Berger@ThompsonHine.com">Joseph.Berger@ThompsonHine.com</a>

Tom Mason 202.263.4168 <a href="mailto:Thomas.Mason@ThompsonHine.com">Thomas.Mason@ThompsonHine.com</a>

Francis E. Purcell, Jr. 202.263.4118 <a href="mailto:Chip.Purcell@ThompsonHine.com">Chip.Purcell@ThompsonHine.com</a>

Ray McCann 202.263.4152 <a href="mailto:Ray.McCann@ThompsonHine.com">Ray.McCann@ThompsonHine.com</a>

Mona Adabi 202.263.4147 <a href="mailto:Mona.Adabi@ThompsonHine.com">Mona.Adabi@ThompsonHine.com</a>

or any member of our&nbsp;<a href="https://www.thompsonhine.com/services/government-contracts-2" target="_self" rel="noopener">Government Contracts</a> practice group.

Additional Resources

We have assembled a firmwide multidisciplinary task force to address clients’ business and legal concerns and needs related to the COVID-19 pandemic. Please see our <a href="https://www.thompsonhine.com/services/covid-19-task-force">COVID-19 Task Force</a> page for additional information and resources.

This advisory bulletin may be reproduced, in whole or in part, with the prior permission of Thompson Hine LLP and acknowledgment of its source and copyright.

This publication is intended to inform clients about legal matters of current interest. It is not intended as legal advice. Readers should not act upon the information contained in it without professional counsel.

This document may be considered attorney advertising in some jurisdictions.

https://admin.thompsonhine.com/wp-content/uploads/2022/04/DHS_Issues_Guidance_on_Identification_of_Essential_Critical_Infrastructure_Workers.pdf

DHS Issues Guidance on Identification of Essential, Critical Infrastructure Workers

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