On March 19, 2020, Governor Gavin Newsom issued Executive Order N-33-20 (“Order”), which effectively imposed a statewide shutdown of non-essential business and governmental operations.  This Special Bulletin was updated on April 6 to reflect the most current guidance and orders.

The analysis provided in this Bulletin relies on an interpretation of the term “essential” used as a modifier in orders, statutes and regulations to imply the negative, and that not all things are essential.

In order to comply with the Order and ensure the continuity of essential operations, including the provision of critical public services, public employers must determine the essential function of the agency and which employees are necessary to carry out such function. These decisions may be complicated by competing and, at times, conflicting directives from other governmental authorities, including those which dictate which employees are required to report to work and which must stay home.

The purpose of this Bulletin is to provide guidance to public employers faced with these complex questions in order to assist them in navigating the requirements of the Governor’s Order and reconciling the requirements in that Order with other lawful orders.

This Bulletin also intends to provide a methodology by which employers may determine which of their employees are essential to their operations, so that employers may instruct non-essential employees to stay home from work in compliance with the Order’s stay home requirement for non-essential employees.

Executive Order N-33-20 and Essential Infrastructure

Governor Newsom’s Executive Order N-33-20 provides that, in order to protect public health, all individuals living in California must stay in their home or place of residence unless needed to maintain continuity of operations of critical infrastructure sectors.

The Order then identifies sixteen (16) critical infrastructure sectors whose employees, due to their performance of essential functions are necessary to the continued operation of the infrastructure and industries specified, are exempted from the requirement to stay home from work.

The Order relies on and refers to guidance provided by the Department of Homeland Security’s (“DHS”) Cyber and Infrastructure Security Agency (“CISA”) concerning which of our nation’s industrial sectors are critically important to the nation’s response to COVID-19 emergency. CISA expressly provides that the covered sectors “have a special responsibility in these times to continue operations.” The guidance continues: “[p]romoting the ability of such workers to continue to work during periods of community restriction, access management, social distancing, or closure orders/directives is crucial to community resilience and continuity of essential functions.”

Government Facilities’ Importance Lies in the Provision of Public Services

One of the sectors covered by and exempted from the stay home requirement in Governor Newsom’s Order is “government facilities.”

CISA’s sector-specific plan for the government facilities sector expressly provides that the importance of government facilities derive not just from a facility’s built structure, but from the services provided to the public at or from those facilities and the individuals “who perform essential functions, possess tactical, operational or strategic knowledge” of such facilities and services (p. 5). Furthermore, CISA identifies types of work necessary to ensure continuity of government operations that extend well beyond the ensuring the continuity of building functions and maintaining building access control and physical security. Based on this information, the State Public Health Officer, operating with authority delegated by the Governor, issued guidance concerning the type of workers that public agencies may decide to deem “essential” for the purpose of carrying out their functions.

Therefore, in order to comply with stay home directives included Executive Order N-33-20, each public agency must, as a preliminary matter, determine the essential functions that it provides to the public and that it must continue to provide during the emergency response to COVID-19. According to CISA, “[essential] functions are activities that are conducted to accomplish an organization’s mission and serve its stakeholders.” (p. 61.) A public agency may reasonably conclude that a certain department or division is not necessary to the agency accomplishing its mission and serve its function in the community.

While the functions provided by cities, counties, special districts, and public school and community college districts, differ, determining the public agency’s essential function is a necessary and preliminary determination that must precede deciding which of the agency’s employees are essential.

Reconciling Order N-33-20 with Orders Issued by Cities and Counties

Prior to the issuance of the Governor Newsom’s Order on March 19, 2020, numerous cities and counties across the state had issued public health orders recommending or requiring community restrictions, access management, social distancing, or closure orders/directives in order to limit the spread of COVID-19. Below is a list of and links to certain County orders. Note that this list may not be comprehensive. Public agencies should consult with local County officials to identify any local orders to which the agency may be subject.

Several of these orders recommend or require that public employees or certain groups of public employees remain at home and away from work. Therefore, certain legally binding local orders, or portions thereof, may conflict with the Governor’s Order that non-essential employees remain at home.

Most local orders that restrict the operation of business and government provide exemptions for essential business and government operations such that a local agency can likely reconcile a local order with the requirements under the Governor’s Order.

However, where a local order imposes more stringent restrictions on who may return to work than are provided for in Order N-33-20, a public agency that is subject to both lawful orders should comply with the more stringent provisions of the local order. This will ensure that the public agency complies with both orders and directs employees deemed non-essential to remain at home and away from work. Similarly, if Order N-33-20 provides more stringent restrictions than a local order, agencies should follow those provisions of the Governor’s Order.

It is important to note that COVID-19 represents a statewide public health emergency and the coordinated response to the emergency, including the continued provision of essential government services, is an issue of clear and immediate statewide concern. Therefore, where there is a conflict between a lawful local order (e.g. county public health order), or provisions of such order, concerning personnel matters (e.g., stay home orders) and Order N-33-20, a public agency should attempt to reconcile the orders in such a way as to ensure the maximum staffing necessary to maintain continuity of operations. However, where the conflict between the orders is direct and irreconcilable the public agency must follow which ever order provides the more stringent restrictions on public employees returning to work.

Public agencies subject to previously issued local orders that adjusted staffing based on the specific requirements of such orders may need to revisit previous guidance.

Determination of Essential Employee Status

After a public agency determines the nature of the essential services that it provides to the public, and which are necessary to continue providing in order to assist with the response to the COVID-19 emergency, the agency must then determine the public employees who are necessary to provide such services.

CISA provides that “essential functions are used to identify supporting tasks and resources that must be included in the organization’s continuity planning process.” (p. 61.) While CISA describes essential services as tasks, it is clear that the individual employee who performs such services or tasks, are essential employees needed to maintain continuity of government operations.

For the purpose of complying with Executive Order N-33-20, an employer’s determination of essential employees must be grounded in the need to maintain continuity of functions deemed by the agency to be essential to the public. It must further provide flexibility for changing circumstances and needs, both in the community and to the emergency response. For example, a public agency may reasonably conclude that the services performed by an employee are essential, but that the employee may perform such work remotely, or that the service performed by groups of employees is essential, but that the agency does not need all the employees for every shift.

The public agency should be mindful not to make decisions arbitrarily or capriciously, and when circumstances permit should create a record explaining the justification for the determination.

These are complex questions and Liebert Cassidy Whitmore is here to provide specific guidance to your questions, including advice regarding employees who support or provide essential services.

What Does My Agency Need to Do Now?

Below is a checklist to assist your agency navigate these complex issues in a thoughtful and deliberate manner:

  1. As soon as possible, identify all employees whose continued service is necessary and required in order to continue provision of the essential function(s) provided by your agency. Refer to state guidance as necessary. Deem these employees to be “essential employees”;
  2. Identify all employees whose work is necessary to provide sufficient support and staffing to the “essential employee”. Deem all of these employees to be “essential employees”;
  3. If there is a close question between deeming an employee an “essential employee” and not, deem the employee an “essential employee”;
  4. The decision whether to deem an employee an “essential employee” is yours to make as the public agency and employer; it is not the employee’s decision; and
  5. Be deliberate and decisive, and, at all times, act in the public’s best interest in your decision making.