On March 19, 2020, Governor Newsom issued Executive Order N-33-20 (the “Order”), which directs all California residents to stay home unless needed to maintain operation of essential critical infrastructures. Government entities and public agencies are tasked with determining which functions and operations are critical or essential and designating employees that are essential to maintaining those operations and functions.

The full text of the Order may be found here.

Some determinations are easy. Obviously, first responders and public safety employees perform essential functions in all aspects of their work. However, other determinations are less clear cut.

Some employees perform a mix of essential and non-essential functions, and what is considered an essential function may evolve over time. For example, an employee in a maintenance position may be responsible for landscaping. Keeping flower beds weeded might not be a critical function, but keeping tree branches trimmed away from power lines is certainly essential. Should the Order stay in place as we move into summer, weeding public landscapes will be critical for fire control, a very essential function in California. Thus, public agencies should determine which duties within each job classification are essential now and which duties may become essential in the future.

In addition to the statewide Order, several counties and cities have adopted shelter-in-place ordinances. Local law enforcement officials are enforcing these ordinances, and, in some counties, law enforcement officers have been stopping people to ensure compliance. Public agencies should prioritize the designation of essential employees and provide each such employee with documentation of their designation.

To aid in this analysis, the State Public Health Officer has published a comprehensive list of essential critical infrastructure workers, which can be found here. Our office can provide additional guidance on designating essential employees and a template for documentation notifying employees of their designation.

If you have any questions or concerns, you are welcome to contact the offices of Churchwell White at (916) 468-0950 or email Doug White at Doug@whitebrennerllp.com, Barbara Brenner at Barbara@whitebrennerllp.com, Debra Hinshaw Vierra at Debra@whitebrennerllp.com, or Nubia Goldstein at Nubia@whitebrennerllp.com.