COVID-19 Update: Update to California’s Executive Order N-33-20

3 minute read | March.23.2020

As a follow-up to Executive Order N-33-20, on March 20, Governor Newsom’s office released a 14-page report which provides additional guidance regarding “essential business operations” in California.  Originally, the Governor’s Executive Order directed California workers to the Cybersecurity and Infrastructure Security Agency (CISA) website to determine whether they qualify as essential to one of 16 federal critical infrastructure sectors.  The 14-page report narrows “essential business operations” to workers in 13 sectors: (1) Healthcare/Public Health, (2) Emergency Services; (3) Food and Agriculture, (4) Energy, (5) Water and Wastewater, (6) Transportation and Logistics, (7) Communications and Information Technology (8) Other Community-Based Government Operations and Essential Functions, (9) Critical Manufacturing, (10) Hazardous Materials, (11) Financial Services, (12) Chemical, (13) and Defense Industrial Base.

Within each sector, the Governor outlines the type of work that qualifies as essential.  These 13 sectors are similar to the sectors outlined by CISA in its recent guidance on essential critical infrastructure workers. In fact, the majority of the Governor’s 14-page report appears to track CISA’s guidance.  There is some inconsistency, however, regarding how the CISA guidance, the CISA website, and Governor Newsom label the different critical infrastructure sectors.[1]

Regardless of how they label the sectors, both the CISA guidance and the California report both omit “Commercial Facilities,” indicating this sector is not deemed essential under the Order. Thus, as noted in our previous post, the categories of “essential” work described in the CISA guidance (and now the California report) are narrower than those described in CISA’s 16 sector-specific plans.

In addition, the Governor’s website created a list of “Frequently Asked Questions” that addresses, among other things, whether the state order supersedes local orders.  As we highlighted in our previous post, several counties, including San Francisco, affirmed their belief that Executive Order N-33-20 is complementary to its local shelter-in-place orders and thus residents of those counties should still comply with such orders.  The "Frequently Asked Questions" page initially stated: “This is a statewide order.  Depending on the conditions in their area, local officials may enforce stricter public health orders.  But they may not loosen the state’s orders.” The page has now been revised, however, to simply state, "This is a statewide order," leaving it unclear whether cities and countries with stricter shelter-in-place orders are still enforceable.

Following Governor Newsom’s Executive Order, the California Chamber of Commerce commended the Governor for providing greater clarification on essential business operations and “encouraged all business in California to follow the public health directives laid out by the Governor.”  Nevertheless, noting potential inconsistencies between local orders and the Governor’s Executive Order, the Chamber urged “all local officials to follow the lead of the Newsom administration by conforming their directives to these guidelines.  A large number of California businesses operate in many different counties or span the entire state so the need for consistency in supply chain operations is critical.”

We will continue to monitor developments in this area. Stay tuned for updates.

[1] For example, the CISA guidance and the CISA website label the sectors differently in that the CISA guidance separates the “Emergency Services” sector into two separate sectors: “Law Enforcement, Public Safety, First Responders” and “Public Works.”  Contrary to the CISA guidance, the 14-page California report follows the CISA website’s labeling scheme by combining both into the “Emergency Services” sector. Additionally, both the CISA guidance and the California report combine “Communications” and “Information Technology” into one sector, whereas the CISA website separates them into two sectors.