On March 23, 2020, the Governor issued Executed Order No. 2020-21, which is a “temporary requirement to suspend activities that are not necessary to sustain or protect life.” The Order goes into effect on March 24, 2020, at 12:01 a.m., and will be in place for at least the next 3 weeks.
The Order provides, among other things, that “no person or entity shall operate a business or conduct operations that require workers to leave their homes or places of residence” except to the extent that those workers are “critical infrastructure workers” or “necessary to conduct minimum basic operations.”
Critical Infrastructure Workers Exemption
Businesses and operations that employ critical infrastructure workers are permitted to continue in-person operations, but they must (1) determine which of their workers are critical infrastructure workers and inform those workers of that designation, (2) must make the designations in writing (email is sufficient), and (3) must adopt social distancing practices and other mitigation measures to protect workers and patrons as more fully set forth in the Order.
The Order defines “critical infrastructure workers” as those workers “described by the Director of the U.S. Cybersecurity and Infrastructure Security Agency” (CISA) in the Director’s “Memorandum on Identification of Essential Critical Infrastructure Workers During Covid-19 Response” (the “Memorandum”). Included as critical infrastructure workers under the Memorandum are those involved in “Public Works” encompassing “workers such as plumbers, electricians, exterminators, and other service providers who provide services that are necessary to maintaining the safety, sanitation, and essential operation of residences.”
For those involved in community association administration and operation, the Public Works critical infrastructure workers exemption appears to provide communities, their managers and contractors with the tools and authority needed to ensure that necessary community functions relating to safety, sanitation, and essential operations can continue. Although additional guidance is hopefully forthcoming, we believe that common area cleaning personnel, security guards, and those involved in ensuring that utilities are properly running and that residences are properly protected from the elements (such as a roofing contractor repairing a roof leak), fall within this Public Works exemption category.
If Public Works critical infrastructure contractors are going to proceed with work in a community, they again must be designated as such and must otherwise adopt social distancing practices and other mitigation measures as more fully set forth in the Order, including increasing standards of facility cleaning and disinfection.
Workers Necessary to Conduct Minimum Basic Operations
The Order also permits workers “who are necessary to conduct minimum basic operations” to conduct operations outside of their homes or places of residence. The Order defines “workers necessary to conduct business operations” as those whose in-person presence is strictly necessary to allow the business or operation to (1) maintain the value of inventory and equipment, (2) care for animals, (3) ensure security, (4) process transactions (including payroll and employee benefits), or (5) facilitate the ability of other workers to work remotely.
Businesses and operations must (1) determine which of their workers are necessary to conduct minimum basic operations, (2) inform these workers of that designation, (3) make the designations in writing (email is sufficient), and (4) adopt social distancing practices and other mitigation measures to protect workers as more fully set forth in the Order. For management companies, while certain personnel, such as managers or maintenance workers performing public works may fall within the category of “critical infrastructure worker” and should be designated as such if appropriate, other management company personnel will likely not fit within the critical infrastructure worker description. Instead, management company personnel appear to be required to work remotely, unless the personnel are considered “workers necessary to conduct business operations,” in which case they must be designated as such.
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