On Monday, March 16 the President issued updated guidance on the COVID-19 virus.
That guidance included a note that workers in "critical infrastructure" industries have a special responsibility to maintain their normal work schedule. The Department of Homeland Security ("DHS") was tasked with defining what a critical industry was. This Thursday, March 19, the Cybersecurity and Infrastructure Agency ("CISA"), which is responsible for executing certain DHS functions, provided an initial list of "Essential Critical Infrastructure Workers" to help state and local officials identify those industries that play a pivotal role in keeping communities running.
The list, which is not intended to be exhaustive, includes:
- Commercial Facilities;
- Critical Manufacturing;
- Defense Industrial Bases;
- Emergency Services;
- Food and Agriculture;
- Government Facilities;
- Nuclear Reactors, Material, and Waste;
- Information Technology;
- Healthcare and Public Health;
- Transportation Systems; and
The industries identified by CISA are meant to be a guideline, but the list is advisory, it is not a federal directive or a mandatory standard. The ultimate decision remains with state and local officials. More information about the identified industries and CISA can be found here.
Emergency Re-Entry Certification Program
During times of emergency, the state of North Carolina and local counties and cities have the authority to impose restrictions as part of a state of emergency. These restrictions can include road closures, curfews, required evacuations, and other prohibitions on who is permitted to access or move in an emergency area. The COVID-19 virus continues to disrupt day-to-day business operations and public officials continue to release statements, information, and new regulations in response. It's important for our clients who operate delivery services to prepare themselves as best they can to continue their operations during any restriction that may be imposed.
The North Carolina Department of Public Safety ("NCDPS") operates an "emergency reentry certification" system to allow registered vendors of "essential" goods to operate vehicles in an otherwise restricted area. The program issues printed or electronic certificates that authorize the driver holding them to move through restricted areas. This access will allow vendors to operate during curfew hours and on roads that have been closed to the public (although law enforcement can restrict that access to certain routes).
To qualify for a reentry certificate, drivers must be transporting "essential" goods. North Carolina law defines essentials as:
Any goods that are consumed or used as a direct result of an emergency or which are consumed or used to preserve, protect, or sustain life, health, safety, or economic well-being of persons or their property.
It seems clear that the definition applies to medical supplies and food delivery, but the exact application of that definition to different types of goods and industries should be discussed with the NCDPS. It's possible that North Carolina will look to the Department of Homeland Security's list of "Essential Critical Infrastructure Workers" to help guide decisions on who qualifies for certification.
Vendors and their drivers can apply for and receive these emergency reentry certificates prior to any restrictions or states of emergency. The process can take several days at the best of times, so we urge those of you in businesses with delivery services that may be disrupted by curfews, road closures, or other restrictions on free movement to apply now and be prepared in the event that those steps are taken.
(Ed. note: 3/26/20: We updated information provided below regarding material needed for NEW re-entry applications.)
Registered vendors who provide critical services, essential commerce, and necessary goods for the health, safety and economic well-being of citizens can apply for a Certificate of Post Disaster Reentry by following the procedure outlined below.
Process for Re-Entry Registration
- Send an email to NC Business EOC at email@example.com with "Re-Entry" in the subject line. Provide the contact information for a company representative with Memorandum of Agreement (MOA) signatory authority, and include an email address, phone number, and title for that person. Explain the nature of your business and why it is neccessary for you to continue operations during a crisis that would restrict access or movement. Be clear about your need for access to which locations in North Carolina.
- Business EOC will respond with confirmation of receipt of inquiry by email, and will contact you if more information is needed to determine eligibility.
- If approved, Business EOC will set you up as a BEOC member and provide WebEOC access, log-on information, and directions for working inside of the Vendor Access Registry.
- You need to log into the WebEOC system and complete your registration. Be sure to include primary and alternate point-of-contact information, lists all business locations, and review and sign the electronic Memorandum of Agreement. When this process is finished, Business EOC staff will complete the certification and save the completed registration in WebEOC.
- Business EOC sends a final email letter that includes reminders of the legal responsibilities listed in the memorandum of agreement with regard to liability, misuse and distribution of Re-Entry Certificates and welcomes the new private partners into the NC BEOC.
- WebEOC provides a live link to view and print the Re-Entry Certification that includes the applicant’s name, certification category and expiration date.
- At this point, you can print and distribute your Re-Entry Certification to leadership and critical employees.
For further information on reentry, please contact the North Carolina Business EOC at firstname.lastname@example.org or 919-825-2564. Be aware that, given the COVID-19 pandemic, their email box is sometimes full, and it may take time to obtain a response.
Applications to renew existing certificates can be submitted here.
© 2020 Ward and Smith, P.A. For further information regarding the issues described above, please contact .
This article is not intended to give, and should not be relied upon for, legal advice in any particular circumstance or fact situation. No action should be taken in reliance upon the information contained in this article without obtaining the advice of an attorney.