March 29, 2020

COVID-19: How to Engage Policymakers Regarding Essential Business Declarations

Essential Businesses in the United States:

On March 19, the U.S. Department of Homeland Cybersecurity and Infrastructure Security Agency (CISA) released official guidance regarding the “Identification of Essential Critical Infrastructure Workers During COVID-19.” This guidance, which is available here and is explained here, constitutes advice to state and local authorities. It is not federal law.

On Monday, March 23, CISA clarified how the guidance impacts supply chains, advising that:

  • Government should remember that the impacts of interruptions to critical infrastructure services may be felt far from their borders. The downstream impact of a restriction on workers in their community must be considered.
  • Companies should identify critical functions within their supply chain (e.g., third-party vendors, suppliers, service providers, and contractors) who are necessary to maintain critical operations and services, and solutions if possible interruptions occur to the supply chain.
  • Government should examine the key employers in their jurisdiction and the key enablers of their communities (e.g., utilities, internet providers, food and medical providers) and consider also what companies are key contributors to supply chains/distribution or the digital infrastructure.

On calls with government officials and industry partners, MSCI learned CISA will issue updated guidance this week in order to further clarify many job categories that CISA deems essential business/workers. We now have an opportunity to help shape that policy. Our members can help strengthen this guidance that many states are adopting by emailing CISA.CAT@cisa.dhs.gov with detailed examples of why your business and supply chain are critical, life-sustaining infrastructure. Please do so if believe your company should be deemed essential and has had difficulty delivering goods into areas that are currently locked down or otherwise have restricted access.

Thomas has a list of U.S. shutdown orders here.

It also is imperative that metals service centers engage with their local and state officials. The National Association of Manufacturers has provided a list of instructions offering advice for how to communicate with them about this issue. If companies use the templates and instructions provided here, they should alter them to reflect their individual operations. Now, more than ever, it is important that our community of companies speaks with a nonpartisan and unified voice to our elected officials and policymakers.

MSCI submitted a letter last week to Vice President Mike Pence, who heads the COVID-19 response for the Trump administration, and Christopher Krebs, director of the U.S. Department of Homeland Security’s Cybersecurity and Infrastructure Security Agency, to request that metals service centers be considered critical infrastructure and should remain open in the face of the growing number of “shelter in place” policies nationwide. MSCI encourages its members to share the letter directly with their U.S. representatives and senators. While DHS issues guidelines regarding businesses that are declared essential, local and state officials decide in their jurisdiction what qualify as essential businesses.

MSCI also encourages members to check out materials from the National Association of Wholesalers, which has provided a template letter to provide to drivers and employees so that they can use to get to work and conduct work as employees of the critical infrastructure. Critical truck drivers and workers should have a hard copy of this document with them at all times when working. Please be aware that this letter is self-certifying and not an official federal document so companies should review any document that you provide to your employees with your own counsel. Click here to see the letter.

Essential Businesses in Canada:

Provinces in Canada are beginning to shut down businesses and designate essential ones. On March 23, MSCI sent a letter to Prime Minister Justin Trudeau asking that MSCI member companies remain open in the face of the growing number of business shutdowns across Canada. That letter is here.

Thomas is keeping a list of Canadian shutdown orders. That information is available here. The National Association of Manufacturers also has provided guidance for various Canadian provinces. Click here to access it.

Click here to read a list of essential services for Ontario. The definitions of supply chains, manufacturing and agriculture and production is as follows:

  • SUPPLY CHAINS: Businesses that supply other essential businesses or essential services with the support, supplies, systems or services, including processing, packaging, distribution, delivery and maintenance necessary to operate.
  • MANUFACTURING AND PRODUCTION: Businesses that extract, manufacture, process and distribute goods, products, equipment and materials, including businesses that manufacture inputs to other manufacturers (e.g. primary metal/ steel, blow molding, component manufacturers, chemicals, etc. that feed the end-product manufacturer). Businesses, facilities and services that support and facilitate the two-way movement of essential goods within integrated North American and global supply chains.

The guidance for Quebec is here. Quebec’s policy differs from Ontario’s. Quebec exempts some manufacturers from the essential business designation. As it is in the United States, it it important for MSCI member companies to communicate directly with provincial officials on this matter.