Congress needs to stop the ‘essential’ confusion

Normally, being identified as an “essential” employee carries little more import than the expectation that you will show up to work on a snow day. But in the COVID-19 era it carries far greater weight, as governments are deeming “essential” employees as one of the few groups exempt from their newly issued shelter in place quarantine orders.

Dozens of those orders have been issued by states and cities, with more to come. Unfortunately as each directive is issued, more confusion is generated as each one has its own definition of who is an “essential employee.”

That linguistic jumble threatens to slow down pandemic response and recovery efforts as businesses and governments alike waste time scratching their collective heads over who should be allowed to go to work. The most expedient solution to stop those unnecessary semantic mazes is for Washington to step in to create a uniform definition of essential employees, and it needs to do so right away.

To be sure, every order so far has gotten the low hanging fruit right: law enforcement, first responders, health care workers, and the employees needed to keep Americans fed and powered up are universally being defined as “essential.”

Things get murkier though as governors and mayors expand on those categories. Consider that California Governor Gavin Newsom initially issued a vague definition of an essential worker, describing one as a Californian “needed to maintain continuity of operations of the federal critical infrastructure sectors.” That was quickly followed by a 14-page supplement identifying specific types of workers in fields such as energy and manufacturing.

California localities, meanwhile, have been skirmishing with Sacramento over whether their — sometimes stricter — quarantine orders supersede the governor’s statewide order. The lack of resolution on these issues has left business owners scratching their heads, and unfortunately they default to the strictest definition of “essential” lest any of their employees be arrested for violating the governor’s order.

To be fair, California does not have the monopoly on cumbersome definitions of vital workers. New York Governor Andrew Cuomo’s executive order did not specifically identify essential employees, instead simply saying that “businesses providing essential services … may operate at the level necessary to provide such service or function.”

Cuomo’s Empire State Development agency tried to provide some clarity to that terse language, issuing guidance that identified twelve categories of businesses New York considers “essential.” Companies can submit a request to be designated as essential, but only if they are not already covered by the ESD guidance — a perplexing limitation considering that the 12 enumerated categories offered illustrative but not exhaustive examples of covered businesses.

The challenge of identifying essential workers is only going to grow, especially as neighboring states and cities issue conflicting guidance.

We can speak firsthand to the problem already caused by this confusion: We have fielded innumerable calls from business executives seeking clarity about whether employees should be considered “essential” employees. And in light of the internecine fights between state and local governments, more than a few businesses have told us they are pausing their vital pandemic response tasks lest their employees be arrested on the way to work.

There is a solution here, thankfully. On March 16, the Department of Homeland Security issued guidance identifying the essential critical workforce needed for pandemic response and recovery. The DHS list is based on exhaustive work the department has been undertaking for nearly its entire two decades to pinpoint the types of workers the nation will have to rely upon in various emergencies, including for pandemics like the one we are currently navigating.

The guidance states 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.” Read the complete 10-page guidance here.

Right now, however, the DHS guidance is just that — guidance. DHS does not have the legal authority to mandate that every state and locality include its categories of essential employees in their orders.

The simple inclusion of language by Congress in one of its stimulus bills will quickly and cleanly fix this brewing problem. All Congress needs to do is include language in one of those bills stating that the DHS list of essential employees must serve as the baseline definition of workers exempt from any state or local quarantine directive. Doing so will let businesses get back to what they need to be doing: devoting their energy to helping America come through the pandemic.

Containing the coronavirus fallout — and recovering from it — will require an extraordinary effort on the part of business and government alike. Given all the energy and time that will be put into those efforts, it only stands to reason that Washington should reduce unnecessary friction where it can. Letting DHS take the lead on figuring out who is considered an essential employee is a good place to start.

Brian Finch and Amanda Halter are partners at Pillsbury Winthrop Shaw Pittman LLP.