The production and consumption of energy often goes unnoticed until it is interrupted. As the novel coronavirus continues to spread across the United States, many energy companies are asking whether the government has the power to impose state or nationwide quarantine or isolation measures. The issue is that mass quarantines could jeopardize the ability of employees in the energy industry from traveling to their places of employment to fulfill their work related responsibilities.
Traditional energy and energy-efficiency sectors employ approximately 6.7 million Americans.[1] Many of these individuals are part of a highly specialized workforce providing the nation with power and heat. It is vital that energy companies are able to call upon their personnel to maintain operations while any quarantine or isolation order is in effect.
Can the Government Impose Quarantine and Isolation Measures?
Yes, in fact, some quarantine and isolation measures are already in effect in response to the COVID-19 outbreak. For example, on March 17, 2020, mandatory “shelter in place” orders took effect in Northern California. More than 6.7 million people[2] in several Bay Area counties are currently required to “self-isolate in their places of residence to the maximum extent feasible.”[3] Similar orders have been issued by other Northern California communities, including Lake County[4] and Sonoma County.[5] On March 19, 2020, the Governor of California issued an Executive Order directing “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.”[6] The California Governor’s Order “shall stay in effect until further notice.”[7] Violation of the Bay Area Orders and/or the Governor’s Order is a misdemeanor punishable by fine, imprisonment, or both.[8]
How Can Federal, State, and Local Governments Mandate Quarantine and Isolation?
Public health orders such as the Bay Area Orders and the California Governor’s Order are legally enforceable provisions issued under the authority of a relevant federal, state, or local entity.[9] State and local governments derive their authority to quarantine and isolate from the police powers granted by their constitutions and reserved to them by the Tenth Amendment to the U.S. Constitution. Every state in the U.S. has laws authorizing quarantine and isolation orders. However, these laws vary widely.
The authority of the federal government to prescribe quarantine, isolation, and other public health measures is based on the Commerce Clause, giving Congress exclusive authority to regulate interstate and foreign commerce. According to the Centers for Disease Control and Prevention, COVID-19 is already a federally quarantinable communicable disease.[10]
Are There Specific Quarantine and Isolation Exemptions For Energy Industry Professionals?
Though it seems inconceivable that quarantine orders would not include various exemptions for asymptomatic workers involved in essential public safety and energy infrastructure industries, because state and local laws vary widely there is a risk that individual quarantine carve-outs may not effectively encompass all essential energy sector employees. Moreover, because such orders are drafted expediently and under high pressure emergency conditions by different governmental bodies, oversights could occur.
In the Bay Area Orders, individuals who are not sick and not at high risk may leave their residences to provide any services or perform any work necessary to the operations and maintenance of “Essential Infrastructure,” “Healthcare Operations,” “Essential Government Functions,” and “Essential Businesses,” provided that such individuals carry out those services or that work “in compliance with Social Distancing Requirements, to the extent possible.”[11] “Essential Infrastructure” includes “water, sewer, gas, electrical, [and] oil refining.”[12] Further, “Essential Businesses” include service providers “who provide services that are necessary to maintaining the safety, sanitation, and essential operation of residences, Essential Activities, and Essential Businesses” and “Businesses that supply other essential businesses with the support or supplies necessary to operate.”[13] Clearly, power companies, whether upstream or downstream, provide services that are necessary to maintain the safety and continued operations of Essential Businesses and residences. Thus, energy workers involved in extraction, generation, transmission, distribution, and/or storage appear to be covered by the exemption for “Essential Infrastructure” and “Essential Businesses.”
Similarly, the California Governor’s Order exempts individuals needed to maintain continuity of operations of the federal critical infrastructure sectors, which include: (a) electricity industry workers; (b) petroleum workers; and (c) natural and propane gas workers .[14]
These quarantine carve-outs for “Essential Infrastructure” workers and “Essential Businesses” in the Bay Area Orders, and for “federal critical infrastructure sectors” in the California Governor’s Order, are noteworthy and crucial to maintain the continued viability of energy operations in the United States.
Why are the Bay Area Orders and the California Governor’s Order Significant?
Given the unprecedented nature of the response to the COVID-19 outbreak, other cities, counties, states, and/or the President, may follow California’s lead and enact similar quarantine or isolation orders prohibiting individuals from reporting to work in an effort to protect the public health. Hopefully, like the Bay Area Orders and the California Governor’s Order, forthcoming state or federal quarantine directives will include carve-outs for critical energy industry employees to be able to maintain operations and carry out their necessary work related activities.
Please contact a member of the firm's Energy Practice Group with any questions.
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Please note that this information is current as of the date of this Client Alert, based on the available data. However, because COVID-19’s status and updates related to the same are ongoing, we recommend real-time review of guidance distributed by the CDC and local officials.
[1] See The 2019 U.S. Energy and Employment Report available at https://www.usenergyjobs.org/
[2]See https://www.sfchronicle.com/local-politics/article/Bay-Area-must-shelter-in-place-Only-15135014.php?fbclid=IwAR2HrdmcJNoxSVOlA_kv3bOiXu2PjIItiDlwRtTx5sZ5YJoeRV0X2K3G_24
[3] The Bay Area Orders issued by the counties of Alameda, Contra Costa, Marin, San Francisco, San Mateo, and Santa Clara, plus the City of Berkeley, are substantially similar. The San Mateo Order can be found here:
https://cmo.smcgov.org/sites/cmo.smcgov.org/files/HO%20Order%20Shelter%20in%20Place%2020200316_0.pdf The Alameda Order can be found here: http://www.acgov.org/documents/Final-Order-to-Shelter-In-Place.pdf
[4] The Lake County Order can be found here: https://documentcloud.adobe.com/link/track?uri=urn%3Aaaid%3Ascds%3AUS%3A581af0a7-9ad8-48cf-9654-b4c36f2ec859
[5] The Sonoma County Order can be found here: https://socoemergency.org/order-of-the-health-officer-shelter-in-place/
[6] See Executive Department State of California Executive Order N-33-20 available at: https://covid19.ca.gov/img/Executive-Order-N-33-20.pdf
[7] See Executive Department State of California Executive Order N-33-20.
[8] See San Mateo Order, preamble, citing (California Health and Safety Code § 120295, et seq.); See California Executive Order N-33-20 citing Government Code 8665 available at: http://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=GOV§ionNum=8665
[9] https://www.cdc.gov/coronavirus/2019-ncov/php/risk-assessment.html
[10] https://www.cdc.gov/coronavirus/2019-ncov/php/risk-assessment.html
[11] See San Mateo Order, Section 10.
[12] See San Mateo Order, Section 10(c).
[13] See San Mateo Order, Section 10(f).
[14]See Memorandum from the Cybersecurity and Infrastructure Security Agency dated March 19,2020 available at: https://www.cisa.gov/sites/default/files/publications/CISA-Guidance-on-Essential-Critical-Infrastructure-Workers-1-20-508c.pdf