Important Update to the DHS CISA ‘Essential Worker’ Memo

Originally published by the following source: SBC MagazineMarch 30, 2020
by Sean Shields and Kent Pagel

   

The Department of Homeland Security's (DHS) Cybersecurity & Infrastructure Security Agency (CISA) recently added several important updates to its “Memorandum on Identification of Essential Critical Infrastructure Workers During COVID-19 Response.” This memorandum is referenced in several of the state “Stay at Home” Executive Orders, which SBCA is tracking for component manufacturers (CMs).

This list of essential workforce categories remains advisory in nature and is not a federal directive or standard.  Individual states and their Executive Orders still remain in effect on a state by state basis.  The updated memorandum reads, “Individual jurisdictions should add or subtract essential workforce categories based on their own requirements and discretion.”

When this memo was initially published on March 19, 2020, residential and commercial construction, and their supply chains, were not listed as “essential infrastructure.”  However, on Friday, March 27, 2020, the memo was updated to include the following language:

Residential/Shelter Facilities and Services

Workers performing housing construction related activities to ensure additional units can be made available to combat the nation’s existing housing supply shortage.

Workers supporting the construction of housing, 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 serve the construction of housing (e.g., allow qualified private third-party inspections in case of government shutdown).

The inclusion by DHS of residential construction, its supply chain, and the various governmental entities that support housing, is a very positive shift for the continued operation of component manufacturing facilities across the country.

Due to these important changes, some of the background below has become outdated. However, it is included in this article because it provides good context for how and why these updates were made.

Background on the Memo

Initially, the memorandum did not list either commercial or residential construction and their supply chains as “essential infrastructure,” curiously there is a statement on the first page that specifically references “working construction”:

“The attached list identifies workers who conduct a range of operations and services that are essential to continued critical infrastructure viability, including…working construction…”

This raised the question on why the term “working construction” was used but did not exempt construction as essential infrastructure. This discrepancy underscored the fact the memorandum is intended to be advisory and not a standard, and was not an exhaustive listing of critical infrastructure industry sectors. The memorandum specifically encourages individual states to further enumerate “critical industries”:

“Accordingly, this list is advisory in nature. It is not, nor should it be considered to be, a federal directive or standard in and of itself. In addition, these identified sectors and workers are not intended to be the authoritative or exhaustive list of critical infrastructure sectors and functions that should continue during the COVID-19 response. Instead, State and local officials should use their own judgment in using their authorities and issuing implementation directives and guidance. Similarly, critical infrastructure industry partners will use their own judgment, informed by this list, to ensure continued operations of critical infrastructure services and functions. All decisions should appropriately balance public safety while ensuring the continued delivery of critical infrastructure services and functions.”

Note that as of the March 19, 2020, memo release date, there are 16 critical infrastructure sectors referenced in the CISA Memorandum. The memo makes it clear it is intended to be an evolving document after feedback is provided:

“The following list of sectors and identified essential critical infrastructure workers are an initial recommended set… and will evolve…in response to stakeholder feedback.”

It is also important to note that under “Food and Agriculture”, the following definition is included:

“Workers who support the manufacture and distribution of forest products, including, but not limited to timber, paper, and other wood products.”

While technically this definition seems to include wood structural components, there is no guidance set out in the Memorandum with regard to what is included in “other wood products.” And, if construction is not viewed as a critical industry and cannot operate, continuing to manufacture trusses and components will not likely continue as there would be no jobsites open to accept deliveries. 

 

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