An Update on Construction as “Essential”: CISA Publishes Guidance on the Essential Critical Infrastructure Workforce, Version 3.0
April 23, 2020
As you may know, Governor Greg Abbott recently issued an Executive Order relating to the statewide continuity of essential services and activities during the COVID-19 disaster. The Executive Order clarified the meaning of “Essential Services” by adopting the U.S. Department of Homeland Security Guidance on the Essential Critical Infrastructure Workforce, Version 2.0. Since Gov. Abbott issued the Executive Order, the Cybersecurity and Infrastructure Security Agency published Version 3.0 of its guidance.
Just as with Version 2.0, Version 3.0 states that the list is advisory in nature and that “[i]ndividual jurisdictions should add or subtract essential workforce categories based on their own requirements and discretion.” Version 3.0 still identifies 17 Essential Critical Infrastructure Sectors but clarifies certain construction-related activities. Below is additional language in the new Version 3.0. To read the full text of Version 3.0, visit: https://www.cisa.gov/sites/default/files/publications/Version_3.0_CISA_Guidance_on_Essential_Critical_Infrastructure_Workers_3.pdf.
- Workers who maintain, ensure, restore, or who are involved in the development, transportation, fuel procurement, expansion, or operation of, the generation, transmission, and distribution of electric power, including call centers, utility workers, engineers, retail electricity, construction, maintenance, utility telecommunications, relaying, and fleet maintenance technicians who cannot perform their duties remotely
- Workers in the electricity industry including but not limited to those supporting safety, construction, manufacturing, transportation, permitting, operation/maintenance, engineering, physical and cyber security, monitoring, and logistics
- Workers in the petroleum industry including but not limited to those supporting safety, construction, manufacturing, transportation, permitting, operation/maintenance, engineering, physical and cyber security, monitoring, and logistics.
- Transmission and distribution pipeline workers, including but not limited to pump stations and any other required, operations maintenance, construction, and support for petroleum products
- Workers in the natural gas, NGL, propane, and other liquid fuels industries including but not limited to those supporting safety, construction, manufacturing, transportation, permitting, operation/maintenance, engineering, physical and cyber security, monitoring, and logistics
Transportation and Logistics
- Workers that construct, maintain, rehabilitate, and inspect infrastructure, including those that require cross-jurisdiction travel
Public Works and infrastructure support services
- Workers who support the construction, maintenance, or rehabilitation of critical infrastructure
- Workers supporting construction materials production, testing laboratories, material delivery services, and construction inspection
Communication and information technology
- Workers responsible for infrastructure construction and restoration, including but not limited to engineers, technicians, and contractors for construction and engineering of fiber optic cables, buried conduit, small cells, other wireless facilities, and other communications sector-related infrastructure. This includes permitting, construction of new facilities, and deployment of new technology as required to address congestion or customer usage due to unprecedented use of remote services
Residential/shelter facilities and services
- 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)
Gov. Abbott has not issued a new executive order adopting Version 3.0. However, since the previous Executive Order adopted Version 2.0 with no exceptions, it is likely that the addition of the foregoing changes would be acceptable for essential services in Texas.
It is important to remember that Governor Abbott’s Executive Order supersedes any conflicting order issued by local officials in response to the COVID-19 pandemic, “but only to the extent that such a local order restricts essential services allowed by this executive order or allows gatherings prohibited by this executive order.” Based on this language and the language in the CISA memorandum allowing individual jurisdictions to add or subtract essential workforce categories as long as a local jurisdiction is not restricting any essential service provided for in the executive order, it appears that a local jurisdiction can expand and clarify essential services. We will continue to monitor any orders or directives that affect the construction industry in Dallas County, and e will continue to provide you updates. To view our prior articles related to this and other COVID-19 issues, visit: https://www.mcslaw.com/covid-19-news/.
This correspondence should not be construed as legal advice or legal opinion on any specific facts or circumstances. The contents are intended for general informational purposes only, and you are urged to consult a lawyer concerning your own situation and legal questions.