This blog provides important updates to the analysis in our prior blog addressing the impact on workers in the construction materials industry 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 were exempt and thus may continue to work. On March 20, the State’s COVID-19 website clarified that the exemption from the Order applied to construction activity, including housing construction. Although this clarification was very helpful, the Order remained somewhat uncertain regarding the status of construction materials industry workers. Late on Friday, March 20, the State Public Health Officer (“SPHO”) issued a list of “Essential Critical Infrastructure Workers” to be exempt from the Order, and thus allowed to continue working, to ensure “continuity of functions critical to public health and safety, as well as economic and national security.” Again, very helpful, but did not specifically address construction materials.
On Sunday, March 22, 2020, the SPHO issued important updates (“Updates”) to the list of “Essential Critical Infrastructure Workers” directly addressing the construction materials industry. Specifically, the Updates confirm that:
- Essential Workforce for Public Works includes construction materials suppliers; and
- Essential Workforce for Community-Based Government Operations and Essential Functions include workers who provider services related to construction materials sources.
The Updates thus resolve any lingering doubt that the construction materials industry and its workers who help supply essential resources for construction activities throughout the state are exempt from the Order’s stay-home mandate. The Update will therefore help ensure that construction materials and products such as aggregates (sand, gravel, and crushed stone) and ready-mix concrete continue to be manufactured for and delivered to road and highway, public infrastructure, and housing projects, among others. The Updates are shown in blue text on pages 3 and 11 of the list of Essential Critical Infrastructure Workers.
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.
For companies in the industrial materials industry whose products are not used in construction materials, who are seeking clarification regarding the status of their employees under the Order, they should continue to assess how the U.S. Cyber & Infrastructure Security Agency Memorandum applies to them, as discussed in our March 20, 2020 blog.
If you have questions about the Order or the list of “Essential Critical Infrastructure Workers,” 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 firstname.lastname@example.org.
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.