March 20, 2020
Last night Governor Newsom issued Executive Order N-33-20, which requires “all individuals living in the State of California to stay home or at their place of residence except as needed to maintain continuity of operations of the federal critical infrastructure sectors . . ..” The federal critical infrastructure sectors are comprised of 16 broad categories, each of which include numerous industries and subsectors. Information on the federal critical infrastructure sectors is available here.
- Does the Executive Order apply to construction materials producers? At present, it appears that construction materials producers are exempt from the Executive Order. Although federal guidelines do not expressly identify construction materials producers as a critical infrastructure sector, other sectors require maintenance and construction of critical public and transportation infrastructure, which in turn requires construction materials. Further, the state’s official COVID-19 web page, found at covid19.ca.gov, states that “construction, including housing construction” is exempt from the Executive Order.
- Does the Executive Order apply to suppliers and downstream contractors? The federal guidelines, which are incorporated by reference into the Executive Order, are structured around maintaining operational continuity for the critical infrastructure sectors. Suppliers and downstream contractors that are essential to construction materials producers’ continued operations are for this reason also most likely exempt from the Executive Order.
- Has MSHA or OSHA adopted any new COVID-19 rules or regulations that must be implemented? Neither MSHA or OSHA has adopted new formal rules or regulations. However, MSHA is directing mine operators to implement informal OSHA guidelines on preventing the spread of COVID-19. Cal-OSHA has also adopted interim “Guidance for Protecting Workers from Coronavirus (COVID19) in General Industry.” These guidelines emphasize hygiene, routine cleaning of shared workplaces, and social distancing practices. We advise our mining clients to adopt written policies implementing these guidelines, to post the policies on mine bulletin boards, and to discuss these policies during pre-shift and tailgate meetings.
The above guidance represents our current understanding of the Executive Order. We expect the state to provide some clarification in the coming days and will update this guidance as appropriate.
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Brad Johnson is a Partner at Harrison, Temblador, Hungerford & Guernsey LLP in Sacramento, California.
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