This blog provides important updates to the analysis in our March 20 and March 23 blogs addressing the impact on workers in the construction and industrial materials industries of Governor Newsom’s March 19, 2020 Executive Order N-33-20 (“Order”) mandating, subject to certain exceptions, that “all individuals living in the State of California to stay home.”
For background, 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) were exempt and thus may continue to work. CISA previously identified those 16 sectors in a March 19, 2020 Memorandum entitled, “Identification of Essential Critical Infrastructure Workers During COVID-19 Response” (“CISA Memorandum”).
Although clarifications regarding the applicability of the Order to workers in the construction materials industry were issued by the State Public Health Officer on March 22 (see March 23 blog), no corresponding clarification was expressly issued with respect to the industrial materials industry.
Update affecting the industrial materials industry and its workers:
- As we previously reported in our March 20 blog, the treatment under the CISA Memorandum of workers employed by industrial material producers and suppliers, whose materials are not used in construction materials, was somewhat unclear.
- However, on March 28, 2020, CISA issued an Advisory Memorandum identifying an “Essential Critical Infrastructure Workforce” list, which specifically identifies “Workers necessary for the manufacturing of … industrial minerals”. The key language is shown on page 13 of 15 of the Advisory Memorandum at the first bullet point under Critical Manufacturing.
- The Advisory Memorandum thus clarifies that the industrial materials industry and its workers are a part of the 16 critical infrastructure sectors identified by CISA, and therefore exempt from the Order’s stay-home mandate, even if the industrial materials are not used in construction materials.
Update generally affecting the mining industry and its workers:
- In addition, the Advisory Memorandum also specifically identifies “workers necessary for mining” as members of the “Essential Critical Infrastructure Workforce”.
The key language is shown on page 13 of 15 of the Advisory Memorandum at the third bullet point under Critical Manufacturing and identifies “Workers necessary for mining and production of critical minerals, materials and associated essential supply chains, and workers engaged in the manufacture and maintenance of equipment and other infrastructure necessary for mining production and distribution.* * *
“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 Order or the list of “Essential Critical Infrastructure Workforce,” 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 KShapiro@jmbm.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.