Coronavirus and definition of essential services
Businesses are increasingly asking us whether, in the context of the coronavirus disease 2019 (COVID-19) lockdowns, their business counts as an “essential service”. This note provides an overview of what we are seeing from governments’ approaches to this issue so far, and suggests an approach businesses and organizations can use to navigate this issue.
What are governments trying to accomplish?
Governments generally have two main objectives underlying their actions:
Minimize exposure to COVID-19 and slow its spread, so that public health systems are not overwhelmed beyond their capacity
Keeping the economy going as much as possible and retaining the fabric of the economy so that the recovery, when it happens, can be faster and avoid a prolonged recession
It is important to keep in mind that although these two goals conflict, they are equally important. Lockdowns, remote work, etc. are destined to deliver the first; announcements of massive financial support and other interventions aim to deliver the latter.
How do governments try to achieve this?
Although different European countries are at different stages of the virus pandemic, the basic elements of the response have many common elements. Some countries proceed by advisory measures, some by legal coercion (and some try counseling and then move on to coercion). For some the underlying message is “stay/work at home if you can”, for others (particularly if using legal coercion) it is “don’t leave the house unless you can”. ‘have a necessary reason to do so’. They try to promote “social distancing” and therefore discourage/prohibit non-essential gatherings: restaurants, bars, theatres, cinemas, stadiums, universities, schools; and non-essential travel: work remotely if you can.
Governments don’t usually try to define what “essential services” are – beyond stressing the obvious importance of food, pharmaceuticals and health care. There are probably two reasons behind this. First, their second goal is as important as the first – they want as much of the economy as possible to keep working, so they define what should stop, not what should continue. Second, it would be extremely difficult to do so effectively. Supply chains are now so interconnected that each company and organization would have to be scrutinized to determine whether or not they were contributing to an essential service – there simply isn’t the time or capacity to do so.
Is there a legal definition of “essential service”?
This will vary from country to country. And it’s important to distinguish between what is an essential service during a pandemic and what is generally described as critical national infrastructure. However, there is a lot of overlap. A legal definition of essential services is contained in the Network and Information Security Directive (NIS Directive), Annex II, which lists essential services such as energy (electricity, oil and gas), transport (air, rail, water and road), banking, financial market infrastructure, healthcare (hospitals and clinics), drinking water and digital Infrastructure.
Some elements of essential services are being defined in some countries, as part of decisions around the prioritization of medical supplies, the provision of childcare services when schools are closed, who is allowed to cross closed borders, etc These are wide ranging and encompass some of the categories listed in the NIS Directive, and may also include certain activities such as delivery drivers and those in the food supply chain. As supply in the economy inevitably tightens, this is likely a rapidly evolving area. Governments give themselves emergency powers, which are usually very broad, so they can then very quickly define the application of those powers through secondary legislation.
How can I prepare my organization to deal with this?
You should take local advice on what is required under local law. In most countries, employees are encouraged/required to work from home if they can. This can cover your entire organization, or just parts of it. Subject to local law requirements, we recommend that you produce a description of the activities your organization or business undertakes on a site-by-site basis, and how these activities contribute to essential services, and ensure that each employee has one. copy. Where governments – such as, for example, in France – require employers to certify that certain employee activities cannot be performed remotely, we recommend, where possible, including the description of the company’s activities and how they contribute to essential services in the certificate . As an employer, it is also important that you are aware of the duty of care you owe to your employees.
© Copyright 2022 Squire Patton Boggs (USA) LLPNational Law Review, Volume X, Number 79