In response to the COVID-19 outbreak, the federal government, as well as state and local governments like Oregon and Washington, have issued multiple executive orders and emergency notices, most of which refer to “essential workers.” Although this reference appears in several places, which businesses and which workers satisfy the term “essential” is not clearly defined. The following provides a brief overview of those businesses and workers identified as “essential” at the federal and state levels for Oregon and Washington. This information is based upon materials currently available and is subject to change as the Coronavirus and government responses thereto continue to evolve.
Federal Essential Businesses and Workers
Under the Essential Services Act of 2013, in addition to listed utility services, the President of the United States is given discretion to deem other industries, businesses, and workers as essential during a major disaster. On March 16, 2020, the President issued Coronavirus Guidelines for America which identified critical infrastructure industries that were identified through the Department of Homeland Security. The Department of Homeland Security’s Cybersecurity & Infrastructure Security Agency (“CISA”) lists 16 sectors “whose assets, systems, and networks, whether physical or virtual, are considered so vital to the United States that their incapacitation or destruction would have a debilitating effect on security, national economic security, national public health or safety, or any combination thereof:”
- Chemical Sector
- Commercial Facilities Sector
- Communications Sector
- Critical Manufacturing Sector
- Dams Sector
- Defense Industrial Base Sector
- Emergency Services Sector
- Energy Sector
- Financial Services Sector
- Food and Agriculture Sector
- Government Facilities Sector
- Healthcare and Public Health Sector
- Information Technology Sector
- Nuclear Reactors, Materials, and Waste Sector
- Transportation Systems Sector
- Water and Wastewater Systems Sector
The Presidential guidelines and subsequent releases from the Department of Homeland Security serve as recommendations for states and local municipalities to impose their own restrictions and identifications as determined by their needs.
Oregon Essential Businesses and Workers
Although Oregon does not have an express definition of “essential businesses” or “essential workers,” Governor Brown’s March 23, 2020 Executive Order 20-12 provides a non-exhaustive list of businesses and workers that are essential and therefore exempt from the Stay Home, Save Lives order while performing essential work:
- Grocery Services
- Health Care Services
- Medical Services
- Pharmacy Services
- Restaurants
- Bars
- Taverns
- Brew Pubs
- Wine Bars
- Cafes
- Food Carts
- Coffee Shops
- Other similar establishments that offer food and drink
Food service providers are still subject to the prior Executive Order 20-07, which prohibits on-premises consumption of food or drink but allows take-out or delivery service. Additionally, childcare facilities can only remain operating if they do not exceed 10 children and so long as the facilities prioritize the needs of first responders, emergency workers, and health care professionals.
Although the Executive Order does not list all essential businesses and workers, it does list non-essential businesses and workers:
- Amusement parks
- Aquariums
- Arcades
- Art galleries
- Barber shops and hair salons
- Bowling alleys- Cosmetic stores
- Dance studios
- Esthetician practices
- Fraternal organization facilities
- Furniture stores
- Gyms and fitness studios
- Hookah bars
- Indoor and outdoor malls (except food services)
- Indoor party places
- Jewelry shops and boutiques (unless exclusively through pickup or delivery)
- Medical spas
- Facial spas
- Day spas
- Non-medical massage therapy services
- Museums
- Nail and tanning salons
- Non-tribal card rooms
- Skating rinks
- Senior activity centers
- Ski resorts
- Social and private clubs
- Tattoo/piercing parlors
- Tennis clubs
- Theaters
- Yoga studios
- Youth clubs
Businesses not listed as nonessential may remain operational so long as the parameters of the Governor’s prior orders, such as maintaining social distancing, are not violated, and only while performing essential work. Additional guidance for employers can be found through the Oregon Health Authority’s COVID-19 webpage, and businesses and individuals interested in receiving direct updates from the Oregon Health Authority may also subscribe to updates via e-mail for free at the same location.
Washington Essential Businesses and Workers
Washington’s Governor Jay Inslee issued a similar Stay at Home, Save Lives Order, but the Washington order lists specific categories of sectors that are deemed “essential” during the COVID-19 outbreak, as well as examples of workers who fall within those sectors:
- Healthcare/Public Health (including health care providers and workers who support healthcare operations)
- Emergency Services Sector (including first responders, military, and private security services)
- Food and Agriculture (including grocery stores, restaurants offering carry-out and delivery, agricultural and food production workers, and other workers who support food and agricultural operations)
- Energy (including electrical, petroleum, and natural and propane gas)
- Water and Wastewater (including operational staff of water and wastewater facilities)
- Transportation and Logistics (including mass transit workers, freight rail workers, and trucking operations)
- Communications and Information Technology (including engineers, technicians, and other support personnel for both communications and information technology)
- Other Community-Based Government Operations and Essential Functions (including critical government workers, security staff, weather forecasters, construction and trade workers like plumbers, electricians, etc. whose services are necessary to maintain services and for emergency repairs, and workers who are critical to facilitating trade)
- Critical Manufacturing (including workers necessary for manufacturing and production of materials and products needed for the medical supply chains, transportation, energy, communications, and food and agriculture)
- Hazardous Materials (including workers at nuclear facilities and those who support hazardous materials clean up and management)
- Financial Services (including workers necessary to maintain systems for processing financial transactions and services and those necessary to provide consumers with access to banking and lending services)
- Chemical (including workers supporting the chemical and industrial gas supply chains and workers supporting the operation and maintenance of facilities with high-risk chemicals)
- Defense Industrial Base (including military and civilian workers supporting national security commitments such as mechanical and software engineering, manufacturing/production workers, IT support, security staff, and intelligence support)
In addition to Governor Inslee’s list above, Washington businesses that need clarification or would like to petition to be added to the list can e-mail vog.aw.lim@ssenisub. The Governor’s Order does not require that businesses stop operations if the business can carry on through telework. However, all essential businesses still must always maintain social distancing to the extent possible and are only exempt while performing essential work.
Which businesses and workers qualify as “essential” can vary state to state as well as between government levels, and the status is subject to change as the COVID-19 pandemic continues to develop. If there are questions as to whether your business or profession is “essential,” please contact a Bullivant attorney for assistance.
