Is Your Business an Essential Business During COVID-19? Transportation Edition

March 2020

As of this writing, thirty-four states have issued some flavor of full or partial “Shelter in Place” rules in response to the COVID-19 outbreak. While these orders vary by name and in scope, the essential nature of them is that non-essential businesses must shut down publicly for a period of time and that employees of non-essential businesses (and non-essential employees of essential businesses) need to stay home and not report to work.

One of the key questions for employers is whether their work qualifies as an “Essential Business”. While each order is different and specific to that particular jurisdiction, they do contain many similarities. Many states have directly adopted or are influenced strongly by the guidelines issued by the Department of Homeland Security, as set forth in the Cybersecurity and Infrastructure Security Agency’s (“CISA”) Guidance on the Essential Critical Infrastructure Workforce.

Under the CISA guidelines, the first question is whether a business operates in one of the Critical Infrastructure Sectors, which include:

  1. Healthcare / Public Health
  2. Law Enforcement, Public Safety, and First Responders
  3. Food and Agriculture
  4. Energy
  5. Water and Wastewater
  6. Transportation and Logistics
  7. Public Works
  8. Communications and Information Technology
  9. Other Community-Based Government Operations and Essential Functions
  10. Critical Manufacturing
  11. Hazardous Materials
  12. Financial Services
  13. Chemical
  14. Defense Industrial Base

Under Transportation and Logistics, it seems obvious that airlines, rail, and trucking companies would qualify as Essential Businesses. So might maintenance, repair and overhaul facilities (MROs), ground handling companies, fixed based operators (FBOs), delivery companies that move freight and cargo out of airports and rail yards. But how does a company decide if it is an Essential Business that can or should remain in operation during a Shelter in Place order?

The fact is, there is no state or federal regulatory entity that will name you an Essential Business and no government agency (so far) is set up to provide a license to operate according to the directive. For the most part, a business may need to “self-declare” if it is a critical infrastructure and can support the conclusion. The Homeland Security guidelines are a good starting place for such support. The Homeland Security website states their public guidance is for, among others, the “private sector,” and it includes additional information that may be helpful.

For instance, there is a separate list as to what workers may be considered “Essential Employees”. Most Shelter in Place laws not only limit public operations to Essential Businesses but they also restrict employee travel between home and workplaces to those employees that really need to travel. For Transportation and Logistics, the types of essential workers include, among others, the following:

  • Employees supporting or enabling transportation functions, including truck drivers, bus drivers, dispatchers, maintenance and repair technicians, warehouse workers, truck stop and rest area workers, and workers that maintain and inspect infrastructure (including those that require cross-jurisdiction travel)
  • Workers responsible for operating dispatching passenger, commuter and freight trains and maintaining rail infrastructure and equipment
  • Maritime transportation workers – port workers, mariners, equipment operators
  • Truck drivers who haul hazardous and waste materials to support critical infrastructure, capabilities, functions, and services
  • Employees who repair and maintain vehicles, aircraft, rail equipment, marine vessels, and the equipment and infrastructure that enables operations that encompass the movement of cargo and passengers
  • Air transportation employees, including air traffic controllers and maintenance personnel, ramp workers, aviation and aerospace safety, security, and operations personnel and accident investigations
  • Workers who support the maintenance and operation of cargo by air transportation, including flight crews, maintenance, airport operations, and other on- and off-airport facilities workers

If your company arguably works in a Critical Sector and some of your employees are likely Essential Employees, you can probably support the conclusion that you are an Essential Business. If you don’t fit quite within those guidelines, look elsewhere. Many states have additional guidance in their Shelter in Place orders. You might also be an important supplier for a company that is in a Critical Sector. There are also many businesses on the fringe of the guidance that have managed to be declared Essential Businesses through creative interpretations. In California, for instance, marijuana dispensaries have been determined to be an Essential Business; in other states (including Minnesota) there has been lobbying to include liquor stores.

The COVID-19 outbreak is still evolving, as are the rules and guidance, so the landscape continues to shift, but FMJ is watching developments as they occur.  If you need assistance in whether yours is an Essential Business, please contact Jim Seifert at james.seifert@fmjlaw.comKevin Johnson at kevin.johnson@fmjlaw.com or Nathan Haynor at nathan.haynor@fmjlaw.com