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Defense Industrial Base and Other “Critical Infrastructure” Sectors Expected to Maintain Normal Work Schedule During COVID-19 Outbreak

by Mark J. Linderman and Stephen L. Bacon

Last week, the Department of Homeland Security (DHS) and the Department of Defense (DoD) issued guidance to clarify that the Defense Industrial Base (DIB) and other “Critical Infrastructure Sectors” are expected to maintain their normal work schedules during the COVID-19 outbreak.  To slow the spread of COVID-19, many states and localities have issued “shelter-in-place” orders and similar restrictions on normal economic activity that have forced many businesses to temporarily close or continue operations remotely.  But these orders have generally exempted Critical Infrastructure Sectors, including the DIB.  As a result, many contractors will be expected to maintain normal operations even in those areas where a “shelter-in-place” order applies.  Contractors must regularly check all applicable state and local guidance and should not assume they will be permitted to discontinue operations during the COVID-19 outbreak.

 

On March 19, 2020, DHS issued a memorandum to implement the President’s March 16 guidance that: “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.”  See DHS Memorandum on Identification of Essential Critical Infrastructure Workers During COVID-19 Response, dated March 19, 2020 (“DHS Memo”).  The DHS Memo contains a “list of ‘Essential Critical Infrastructure Workers’ to help State and local officials as they work to protect their communities, while ensuring continuity of functions critical to public health and safety, as well as economic and national security.”  The list covers various sectors including medical and healthcare, telecommunications, information technology systems, defense, food and agriculture, transportation and logistics, energy, water and wastewater, law enforcement, and public works.  The DHS Memo states that the DIB covers “[w]orkers who support the essential services required to meet national security commitments to the federal government and U.S. Military,” including “aerospace; mechanical and software engineers, manufacturing/production workers; IT support; security staff; security personnel; intelligence support, aircraft and weapon system mechanics and maintainers.”  These workers include “[p]ersonnel working for companies, and their subcontractors, who perform under contract to the Department of Defense providing materials and services to the Department of Defense, and government-owned/contractor-operated and government-owned/government-operated facilities.”

 

Following the DHS Memo, DoD issued its own guidance memorandum for the DIB.  See Defense Industrial Base Essential Critical Infrastructure Workforce, dated March 20, 2019 (“DoD Memo”).  The DoD Memo states: “Companies aligned with the essential critical infrastructure workforce definition are expected to maintain their normal work schedules.”  According to the DoD Memo, your company will satisfy this definition “[i]f your contract or subcontract supports the development, production, testing, fielding, or sustainment of [DoD] weapons systems/software systems, or the infrastructure to support those activities,” or “[i]f your efforts support manning, training, equipping, deploying, or supporting our military forces.”  In contrast, “performing such tasks as providing office supplies, recreational support, or lawn care” do not meet the definition.

 

The DHS Memo “recognize[s] 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.”  Moreover, DHS is clear that the list of “Essential Critical Infrastructure Workers” should be considered “advisory in nature. It is not, nor should it be considered to be, a federal directive or standard in and of itself.”  Although DHS/DoD guidance is “advisory,” states that have issued “shelter-in-place” orders thus far have adopted that guidance by specifically exempting Essential Critical Infrastructure Workers.  For example, California Executive Order N-33-20 directs “all individuals living in the State of California to stay home or at their place of residence except as needed to maintain continuity of operations of the federal critical infrastructure sectors, as outlined at https://www.cisa.gov/identifying-critical-infrastructure-during-covid-19.”  See California Executive Order N-33-20 at pg. 1.  Similarly, the “stay-at-home” orders for Illinois and Ohio provide that exempted Essential Businesses and Operations include the workforce identified in the DHS Memo. See Illinois Executive Order 2020-10 at pg. 5, footnote 1; Ohio Department of Health Director’s Stay-at-Home Order at pg. 5. Contractors should check all applicable state and local directives in their jurisdiction to determine whether DHS/DoD guidance has been adopted.

 

As various states and localities issue “shelter-in-place” orders, companies should assess whether they employ “Essential Critical Infrastructure Workers” within the DHS/DoD definition.  Contractors that are required to maintain normal operations during the COVID-19 outbreak will face difficult decisions that could impact their employment relationships and contractual relationships with Government customers.  RJO is here to assist you during this uniquely challenging time with any contract or employment issues that may arise. See Coronavirus Challenges Facing Government Contractors; Addressing COVID-19 Concerns in the Workplace.

 

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