March 23, 2020
By Peter A. Levy
Over the past few days, many of our clients have reached out for help understanding the term "essential service." Despite Executive Orders provided by Governors Murphy and Cuomo in New Jersey and New York respectively, swaths of businesses remain confused because they don’t clearly fit into one of the defined categories. We have been counseling several clients in this unprecedented situation. What follows are a few short case studies, and a brief analysis of the situation.
Over the past week we have been in close contact with FEMA, the Army Corps of Engineers, the New York City Office of Emergency Management, and a variety of local authorities. In one situation, our client provided the underlying power infrastructure and cabling needed by installers and electricians to provide electricity and wireless services for critical facilities, including hospitals, nursing homes, bridges and tunnels. In a second situation, our client was one of many warehouse wholesalers capable of delivering key computer parts and cell phones to end users – but what made their essential role even more important was their access to low income families in need of being able to communicate in a time of dire need.
Even without the Executive Orders issued over the last 72 hours, the term "essential" remains ambiguous, because the circumstances surrounding the emergency continue to change. Something as simple as a spring snowstorm, or a widespread electrical outage would alter the landscape of what is considered essential; and would place many “unessential” wholesale and retail businesses at the forefront of a critical need. Despite federal regulations that "rate" essential personnel, the actual "process a governmental agency goes through to, in identifying these functions and the employees who perform them, is a highly subjective task."
Since 1980, every government agency has been required to have a plan in place in case of an emergency or government shutdown. The Office of Management and Budget mandated this almost forty years ago, and yet it is not properly enforced – a fact that contributes to speculation about essential services. In addition, under the Stafford Act, which controls the way disaster and emergency services are provided to state and local governments, the Federal Emergency Management Agency (FEMA) is the primary source to evaluate, assess and deploy the appropriate response teams.
There are 16 emergency support functions deemed essential by FEMA and the Department of Homeland Security. How these various functions are intertwined, or need to be implemented, depends on a variety of factors not necessarily explained in the laws or regulations.
If you have questions about the current application process, or need a road map to better discern whether your company should be deemed essential, please feel free to contact Peter Levy a plevy@lawfirm.ms.