Federal and California Guidance: Environmental Compliance, Site Remediation Workers "Essential"
Environmental compliance and site remediation workers are included on the federal and California lists of Essential Critical Infrastructure Workers. Federal and state decision-makers recognize that workers supporting Critical Infrastructure need to continue performing essential services.
California Gov. Gavin Newsom's Executive Order of March 19, 2020, specifically excludes critical infrastructure workers from the COVID-19 "stay at home" directive. Most county and city COVID-19 orders also create carve-outs for Essential Critical Infrastructure Workers. Environmental compliance and site remediation workers may continue working in these jurisdictions. It is recommended that such companies and their workers exercise judgment and appropriate discretion, and take all appropriate precautions.
The March 22, 2020, list of "Essential Critical Infrastructure Workers" (Advisory) issued by the California Public Health Director designates site remediation and environmental compliance workers, and others working in related fields (e.g., security, sanitation) as Essential Critical Infrastructure Workers. The Advisory was issued "to help state, local, tribal, and industry partners as they work to protect communities, while ensuring continuity of functions critical to public health and safety, as well as economic and national security." (Note: The state may update the Advisory as needed on an ongoing basis.)
A Memorandum and Guidance from the federal Cybersecurity and Infrastructure Security Agency (CISA) dated March 19, 2020, includes a similar list, and also exempts site remediation and environmental compliance workers. The CISA issued the memorandum to assist states and localities in responding to the COVID-19 pandemic. While not binding on states or other jurisdictions, it is likely that these workers will be designated as Essential Critical Infrastructure Workers across the nation.
Excerpts from the Advisory
Statements relevant to workers from the site remediation and environmental compliance sector from the California Advisory of March 22, 2020, are excerpted below. The following excerpts have been reordered for ease of reference.
Workers who support hazardous materials response and cleanup
Law Enforcement, Public Safety and First Responders
Hazardous material responders and hazardous devices teams, from government and the private sector
Environmental remediation/monitoring technicians
Transportation and Logistics
Truck drivers who haul hazardous and waste materials to support critical infrastructure, capabilities, functions, and services
Water and Wastewater
Operational staff at wastewater treatment facilities
Workers repairing water and wastewater conveyances and performing required sampling or monitoring
Support, such as road and line clearing, to ensure the availability of needed facilities, transportation, energy and communications [and] Support to ensure the effective removal, storage, and disposal of residential and commercial solid waste and hazardous waste
Other Community-Based Government Operations and Essential Functions
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)
Conclusion and Considerations
Please do not rely on this Holland & Knight alert to make decisions. This summary may not be comprehensive and COVID-19 developments are rapidly changing. Judgment and discretion needs to be applied in determining whether workers should continue operations during the COVID-19 pandemic. It is also recommended that appropriate precautions should always be maintained.
If you have specific questions about how the California Executive Order affects your business, please contact Nicholas Targ or another member of our California COVID-19 Team – which also includes Holland & Knight attorneys Jennifer Hernandez, Letitia Moore, Bradley Brownlow, Andrew Starrels and Ryan Leaderman – for legal assistance.
DISCLAIMER: Please note that the situation surrounding COVID-19 is evolving and that the subject matter discussed in these publications may change on a daily basis. Please contact the author or your responsible Holland & Knight lawyer for timely advice.
Information contained in this alert is for the general education and knowledge of our readers. It is not designed to be, and should not be used as, the sole source of information when analyzing and resolving a legal problem. Moreover, the laws of each jurisdiction are different and are constantly changing. If you have specific questions regarding a particular fact situation, we urge you to consult competent legal counsel.