On March 19, 2020, Governor Newsom issued Executive Order N-33-20 (“Order”) “ordering all individuals living in the State of California to stay home or at their place of residence”. As discussed below, the Order allows workers in certain industry sectors to continue working.
There are several categories of workers who may continue to work under the Order.
- The Order states that workers “needed to maintain continuity of operations” of 16 critical infrastructure sectors identified by the U.S. Cyber & Infrastructure Security Agency (“CISA”) may continue to work.
- CISA identified the 16 sectors in a March 19, 2020 Memorandum entitled, “Identification of Essential Critical Infrastructure Workers During COVID-19 Response” (“CISA Memorandum”).
- According to the State of California’s COVID-19 website that published the Order, workers in several other industries may also continue to work, even though those industries are not referenced in Order, including “critical government services, schools, childcare, and construction, including housing construction.”
Applicability of the Order to construction materials industry workers.
- Construction materials and products include sand, gravel, and crushed stone, generally referred to as “aggregates,” and ready-mix concrete. As stated above, the State of California’s COVID-19 website indicates that workers in the construction industry may be allowed to work. Because those materials are necessary for construction, which according to the State’s COVID-19 website is an industry whose employees may continue to work, it appears that workers in the construction materials industry may continue to work.
- In addition, the CISA Memorandum refers to a category of “critical manufacturing” workers “necessary for the manufacturing of materials and products needed for” critical industries, including the transportation, energy, and communications sectors, among others.
- Notably, the CISA Memorandum is broad and includes “workers who conduct a range of operations and services that are essential to continued infrastructure viability,” including “maintaining and repairing critical infrastructure” and “working construction”.
Applicability of the Order to industrial materials industry workers.
- Industrial materials include limestone, common clay, bentonite clay, kaolin clay, diatomite, dolomite, gypsum, industrial sand, pumice, talc, borates, soda ash, zeolites, and rare earths. Although some of these materials are used to make products necessary for construction, many are not.
- Thus, to the extent an industrial material is not used in construction materials, companies should review the CISA Memorandum to determine whether they supply materials for industries whose employees are considered “critical manufacturing” workers, as discussed above. If so, and notwithstanding the lack of guidance available, it is possible that workers employed by industrial material producers and suppliers may be allowed to work.
What should employers be doing to comply with the Order?
- If a company believes that its operations include employees who are allowed to work under the Order, the company should work with its human resources division and legal counsel to implement policies consistent with the requirements of the Order, such as “social distancing” requirements.
- Companies must also check for local or regional orders affecting the ability of its workers to report for work, which may impose additional considerations that companies must consider.
If you have questions about the Procedures, please contact Kerry Shapiro at KShapiro@JMBM.com.
This Update is provided to our clients, business associates and friends for informational purposes only. Legal advice should be based on your specific situation and provided by a qualified attorney.
Kerry Shapiro chairs the Natural Resources & Mining Practice Group at Jeffer Mangels Butler & Mitchell LLP. He has represented the mining, construction and building materials industries on mineral extraction and land development projects for more than 25 years. Kerry also serves as General Counsel to the California Construction and Industrial Materials Association (CalCIMA). Contact Kerry Shapiro at email@example.com.
Martin Stratte is a land use and environmental attorney at Jeffer Mangels Butler & Mitchell LLP. He assists with the entitlement of complex projects throughout California in accordance with CEQA, NEPA, and California’s greenhouse gas emission and climate change regulations. He also represents clients in related litigation. Contact Martin at MStratte@jmbm.com.
JMBM’s Natural Resources & Mining Practice Group
Jeffer Mangels Butler & Mitchell LLP has one of California’s leading natural resources and mining practice groups. The group is comprised of lawyers with over 25 years of practice in law firms, government, and consulting, and provides companies and trade associations with unparalleled counseling, compliance, and litigation services in nearly every area of federal and California natural resources and mining law.