Alerts

CISA, Essential Critical Infrastructure Workers and Federal Contractors

Alerts / March 24, 2020

Federal contractors face confusion and uncertainty over whether their companies and employees performing under federal contracts are exempted from the various restrictions in the recent state-issued “stay at home” orders issued by California, New York Illinois, Michigan, and other states, combined with the rapidly evolving federal response to the new coronavirus disease (COVID-19) threat. In fact, a group of various industry-related organizations recently urged congressional leadership to provide guidance for the treatment of federal contractors during the crisis, to include enacting legislation exempting, when appropriate, “employees performing work deemed essential for national security, including but not limited to defense, intelligence and aerospace development and manufacturing.”[1] The Department of Homeland Security’s (DHS’) Cybersecurity and Infrastructure Security Agency (CISA) is closely involved in assisting federal, state and local officials in determining sectors and their employees exempt from COVID-19 restrictions. Below, BakerHostetler’s Government Contracts team broadly describes CISA and its role in the current COVID-19 crisis, along with what steps federal contractors can take in the midst of the confusion.

Cybersecurity and Infrastructure Security Agency

The mission of DHS’ CISA is to lead the national effort to understand and manage cyber and physical risk to the nation’s critical infrastructure.[2] The nation’s critical infrastructure consists of 16 sectors: the defense industrial base; communications; chemical; critical manufacturing; commercial facilities; dams; emergency services; energy; financial services; food and agriculture; government facilities; healthcare and public health; information technology; nuclear reactors, material and waste; transportation systems; and water and wastewater systems.[3] CISA accomplishes its mission by providing strategic guidance, promoting a national unity of effort and coordinating the overall federal effort to ensure the security and resilience of the nation’s critical infrastructure. CISA partners with both the public and private sectors to deliver infrastructure resilience assistance and guidance.[4]

CISA Guidance on ‘Essential Critical Infrastructure Workers’

CISA has provided advisory guidance to state and local officials in the form of an initial list identifying “Essential Critical Infrastructure Workers” to help these leaders develop COVID-19 guidelines while ensuring continuity of functions critical to public health and safety, as well as economic and national security.[5] CISA has advised that the list can assist in determining the sectors, subsectors, segments or critical functions that should continue normal operations, appropriately modified to account for Centers for Disease Control (CDC) workforce and customer protection guidance.[6] CISA’s list and detailed identification of employees recommended for exemption can be found here.[7] Notably, CISA’s list is advisory in nature and does not constitute a stand-alone federal directive. However, the state stay-at-home orders issued to date have expressly referenced CISA’s list or align closely with it.

Federal Contractor Actions Amid the Confusion

Amid the confusion, contractors are encouraged to take the following steps:

  • Remain in frequent communication with the contracting officer (CO), providing the CO with status updates and, in return, seeking guidance and updates.
  • Document all communications with the CO, especially any guidance received.
  • Assess state stay-at-home orders to determine whether the contractor’s operations fall under an exemption within the order. Most likely, the orders will reference or align with the guidance provided by CISA in its initial Essential Critical Infrastructure Workers list.
  • For companies falling under exemptions within a state’s stay-at-home executive order, a practice to consider is providing employees with a cover letter that identifies the exemption in the state’s order, confirms the employee’s status with the company and includes a copy of the state’s stay-at-home order.
  • If necessary, request business exemptions as directed by the state’s stay-at-home order.[8]
  • Reach out to DHS to request exemption letters for company employees and provide employees with an appropriate company cover letter with the exemption letters.
  • Closely monitor congressional legislation that may address exemptions for federal contractors working in national critical infrastructure.

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As COVID-19 continues to affect all facets of life, federal government contractors will continue to serve as integral parts of the government’s COVID-19 response. BakerHostetler’s Government Contracts team continues to serve as an available resource through these uncertain times.

For further information, contact Barron Avery at wavery@bakerlaw.com or 202.861.1705, Brian Johnson at bvjohnson@bakerlaw.com or 202.861.1537, or any member of BakerHostetler’s Government Contracts team.

Authorship credit: W. Barron Avery and Brian Johnson

[1] Letter (March 18, 2020), https://www.uschamber.com/sites/default/files/arwg_letter_to_hill_on_equitable_adjustments-final_with_logo18march.pdf.
[2] See About CISA, CISA, https://www.cisa.gov/about-cisa (accessed March 23, 2020).
[3] See Critical Infrastructure Sectors, CISA, https://www.cisa.gov/critical-infrastructure-sectors (accessed March 23, 2020).
[4] See Memorandum on Identification of Essential Critical Infrastructure Workers During COVID-19 Response, CISA (March 19, 2020) (“CISA Memo”), https://www.cisa.gov/publication/guidance-essential-critical-infrastructure-workforce.
[5] The following link provides CISA’s memorandum and list on “Guidance on the Essential Critical Infrastructure Workforce: Ensuring Community and National Resilience in COVID-19 Response”: https://www.cisa.gov/sites/default/files/publications/CISA_Guidance_on_the_Essential_Critical_Infrastructure_Workforce_508C_0.pdf.
[6] See CISA Memo.
[7] Guidance on The Essential Critical Infrastructure Workforce, CISA (March 19, 2020), https://www.cisa.gov/publication/guidance-essential-critical-infrastructure-workforce.
[8] See, e.g., Guidance for Determining Whether a Business Enterprise Is Subject to a Workforce Reduction Under Recent Executive Orders, New York (March 18, 2020), https://esd.ny.gov/guidance-executive-order-2026.

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