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The U.S. Cybersecurity and Infrastructure Security Agency (CISA) Issues Updated Guidance on Critical The U.S. Cybersecurity and Infrastructure Security Agency (CISA) Issues Updated Guidance on Critical

The U.S. Cybersecurity and Infrastructure Security Agency (CISA) Issues Updated Guidance on Critical Infrastructure Workers

On March 28, 2020, the U.S. Department of Homeland Security’s Cybersecurity and Infrastructure Security Agency (“CISA”) updated its guidance on what types of workers should be considered part of the “Essential Critical Infrastructure Workforce.” You can find the March 28 CISA Advisory Memorandum here.

The March 28 guidance updates CISA’s previously-issued Advisory Memorandum published on March 19, 2020 and is important due to the fact that several “stay at home” and “shelter in place” orders currently in effect in many jurisdictions across the country incorporate the CISA guidance into their definition of workers who work for an “essential business” or similar construct and therefore are able to continue to travel to work. Additionally, in their Travel Advisory applicable to New York, New Jersey and Connecticut issued on March 28, 2020, the U.S. Centers for Disease Control and Prevention (CDC) linked to this guidance in describing which workers may still travel due to their “special responsibility to maintain normal work schedules.”

Some key updates in the March 28 CISA guidance are:
  • Additional clarity has been added to all categories of workers, and some categories have been expanded to encompass a broader group of workers who are not just directly working in a particular category, but are supporting the work of those who are or are otherwise important parts of the supply chain for particular sectors.
  • With regard to the Energy sector, a list of workers has been added that support the energy industry generally, whereas in the previous guidance, all the categories of workers had been tied to a particular type of energy (electricity, petroleum or natural/propane gas).
  • The sector previously titled “Public Works” is now titled “Public Works and Infrastructure Support Services” and some of the categories of workers in this sector have been expanded to make it clear that certain workers who support critical facilities, public or private (e.g., residences, hospitals, senior living facilities), are included as part of the critical workforce.
  • The sector previously titled “Other Community-Based Government Operations and Essential Functions” has been re-titled “Other Community- or Government-Based Operations and Essential Functions.” This clarifies that this category of workers applies beyond just government operations and facilities.
  • Additional clarity has been added to which workers are included in the “Critical Manufacturing” sector.
  • An additional sector for “Commercial Facilities” has been added, which includes workers in the supply chain for building materials “from production through application/installation,” as well as other workers necessary to maintain residential and commercial facilities.
  • “Residential/Shelter Facilities and Services” is a new sector in this guidance, which includes workers providing life necessities (e.g., food, shelter, social services, repair services, property management, etc.) with respect to needy populations, residences and animals. This category also includes workers in housing construction.
  • A new category of workers in “Hygiene Products and Services” has been added, which includes workers who produce hygiene products as well as provide hygiene-related services, such as laundry, janitorial and disinfection services.

There are many specific changes and updates in this guidance not detailed above. Each worker and business will need to consult the guidance based on its specific facts and circumstances to determine what categories, if any, may be applicable.

This new guidance, similar to the previously-issued CISA guidance, does not itself have any binding application. Many, if not most, of the jurisdictions that tied the definition of “essential business” to the March 19 CISA guidance referenced that previous guidance specifically, and so in order for the new guidance to become applicable, those jurisdictions will need to issue updated orders if the March 28 CISA guidance is to apply. Businesses and workers, therefore, will need to be sure to determine what order is applicable to them.

This publication is intended for general information purposes only and does not and is not intended to constitute legal advice. The reader should consult with legal counsel to determine how laws or decisions discussed herein apply to the reader’s specific circumstances. 

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