The Cybersecurity and Infrastructure Security Agency (CISA) issued an advisory memo on March 28, 2020, regarding the “Essential Critical Infrastructure” status of workers in certain industries, largely patterned after a previous guidance issued on March 19, 2020. So far, Governor Whitmer has not adopted this guidance, so businesses need to follow Executive Order 2020-21 and cannot rely upon this guidance. Nonetheless, while not a federal directive, the new guidance provides additional direction as to the classification of critical infrastructure workers (CIWs).
As it relates to CIWs in construction, the guidance principally does three things. First, the guidance now includes the word “construction” under the description of CIWs in important industry sectors (Energy, Communications, Residential/Shelter Facilities and Services, etc.) The addition of “construction” may be for the purpose of ensuring supply chain continuity. This purpose largely comports with the designation process already required by Governor Whitmer’s EO 2020-21. Per that Order, an industry that employs CIWs, may designate downstream suppliers and service providers, including contractors and construction material suppliers, whose operation is necessary to support the CIWs of the upstream industry. That is, the federal guidance merely affirms the notion that a supply chain may be essential to continuing critical infrastructure work.
Second, the guidance now expressly deems CIWs to be those who support the supply chain of building materials from production through application/installation as essential, including “cabinetry, fixtures, doors, cement, hardware, plumbing, electrical, heating/cooling, refrigeration, appliances, paint/coatings, and employees who provide services that enable repair materials and equipment for essential functions.” However, Michigan material suppliers should still insist that their upstream customer follow the designation process required by EO 2020-21 and should not take the CISA memo as a license to self-designate its business as essential.
Third, the CISA designates certain residential construction workers as essential, those being: “workers performing housing construction related activities to ensure additional units can be made available to combat the nation’s existing housing shortage.” This language may create more questions than it answers – begging the question, what residential construction falls within this definition? Should this language be interpreted as a green light to all residential construction? Probably not. To meet the objective of the guidance, a narrower application of qualifying residential construction projects should be employed. Projects such as low-income housing, HUD projects, and certain residential developments appear related to addressing a housing shortage; construction of a home in a rural setting does not. In any event, as the Governor has yet to adopt the new federal guidance, this expanded definition of permitted residential instruction is not applicable in Michigan. Further, we understand that local prosecutors may take a dim view of general residential construction activity and at least one prosecutor has issued a letter advising that continuing residential construction is not permitted under EO 2020-21.