In response to the COVID-19 pandemic, states have engaged in a delicate balancing act of opening their economies while simultaneously protecting public health since the first phase of stay-ay-home orders last spring. While many workers have been teleworking and others have lost their jobs, some have been deemed “essential” by states, continuing to show up to work during the different phases of restriction states have implemented. Now, as states begin to decide how to prioritize the COVID-19 vaccine among their residents, the essential worker designation is more relevant than ever in states.
The first wave of shelter-in-place and stay-at-home orders in response to COVID-19 largely consisted of local governments asking residents of cities and counties to stay in their homes, away from their businesses. State and federal officials quickly recognized that some statewide measures and/or federal guidelines would be helpful to align the efforts of overlapping jurisdictions. At this point, 46 states and Washington, DC have issued some sort of guidance on which sectors and industries they consider “essential” despite pandemic-related restrictions. According to the U..S Department of Homeland Security, essential workers are those who conduct a range of operations and services that are typically essential to continue critical infrastructure operations. Critical infrastructure is a large, umbrella term encompassing sectors from energy to defense to agriculture.
Of the 43 states with essential worker orders or directives, 21 now defer to the federal definitions developed by the US. Cybersecurity and Infrastructure Security Agency (CISA). CISA’s guidance and sector-specific list, according to the agency’s website, are intended to support state and local governments in their identification of essential workers. The agency says, “promoting the ability of [critical workers] to continue to work during periods of community restriction, access management, social distancing or closure orders is crucial to community resilience and the continuity of essential functions.”
The remaining 23 states (including Washington, DC) who have issued essential worker orders have developed their own lists of who needs to be continuing to work under stay-at-home orders. Often using CISA’s guidelines as a starting point, states have added and subtracted essential worker categories and sectors based on what makes the most sense for them. For example, in some states workers supporting religious organizations and churches are considered essential, while in some others workers who support the cannabis industry receive the essential designation. Between the federal guidelines and state essential worker orders, a number of major sectors overlap including, but not limited to:
Below, we dive into each of these sectors, discussing the pre-COVID-19 workforce, why each is considered “essential,” how this designation is impacting workers and the sector itself and provide state examples.
The energy sector is made up of several interdependent systems that provide services that are vital to the nation’s health, safety and security. Energy can be split broadly into three subsectors: electricity, natural gas and petroleum—all three of which fuel the nation’s transportation and manufacturing, and power everything from health care and government institutions to individual homes and businesses.
In March, the U.S. Department of Homeland Security (DHS) issued guidance on the essential critical infrastructure workforce, which at least 20 states have adopted outright. Another 21 states and Washington, D.C., have developed their own definitions for essential workers. While these definitions can vary substantially, all of them include the energy sector.
Along with other critical systems—such as water and telecommunications—the energy sector’s services have become so fundamental to modern life that their suspension or disruption has the potential to threaten the health and livelihood of most individuals. These systems include:
- The electric grid, including power plants, distribution and transmission systems, reliability and control room operations and nuclear facilities.
- The natural gas network, including processing plants, pipelines and compressor stations, distribution and transmission systems, reliability and control room operations and liquefied natural gas facilities.
- The petroleum and fuel production industry, including oil and gas drilling, production, refining, transport and distribution to gas stations and industrial facilities.
While the infrastructure itself is not threatened, COVID-19 does threaten the human expertise required to reliably operate many of these systems.
The energy sector also contributes substantially to the economic prosperity of the country, and employed around 6.8 million Americans—making up around 4.5% of the nation’s total workforce—as of 2019. In addition to the sector-specific operations, the energy sector relies heavily on its supply chain—businesses and manufacturers that produce everything from fuels to specialized equipment. Many states have classified these suppliers of essential businesses as “essential.” [DS1]
Why It’s "Essential"
In addition to the DHS guidance, energy industry representatives and federal government officials have been vocal in advocating for the inclusion of energy workers in state designations. The emphasis has been particularly on “mission-essential workers”—a limited pool of highly skilled workers whose expertise has been deemed necessary to the continued reliable operation of energy systems. These workers include those who operate power plants, staff the control rooms for transmission and distribution networks, along with the army field operators who maintain and repair the electric and natural gas networks.
Some of these workers are operating on the front lines, with gas and electric utility workers, in particular, being required to enter homes and businesses that could expose workers to the virus. Others, such as the limited number of qualified control room operators, work in small teams that manage the safe and reliably flow of gas and power across vast networks. If one member of a team is compromised, the whole team could be compromised. Given the specialized knowledge required to perform these functions, contagion within this subgroup of the workforce poses serious threats to reliability. In some hard-hit areas, power system operators have taken the dramatic step of housing these workers on-site to further mitigate against exposure to the virus.
Finally, at nuclear plants across the country, workers are completing refueling outages, where the reactors are shut down for two to four weeks while new fuel is put into the reactor. The fuel must be replaced every 18 to 24 months, and typically is scheduled in the spring or fall when electricity demand is the lowest. Each plant typically brings in several hundred specialized workers to complete the refueling activities.
While most states have classified energy industry workers as “essential,” the industry has also sought priority access to testing and personal protective equipment for the most critical workers—though only after front-line healthcare worker needs have been satisfied. This secondary priority would help the industry monitor and mitigate against the virus’ potential spread through these mission-essential workers.
At least 19 states have adopted the DHS guidelines—either as a ceiling or a floor. Many states—through executive orders, legislation or other action—adopted the DHS definitions and its energy sector profile outright. The sector profile is divided into the three categories outlined above, but in much greater detail.
However, several states adopted the DHS guidelines while also adding state-specific industries, including:
- Washington: While adopting the DHS guidelines, the state added a section to include hazardous materials workers—and specifically those at nuclear waste cleanup facilities. The state is home to the Hanford site—the largest of the U.S. Department of Energy’s nuclear weapons complex cleanup operations—where maintenance and monitoring are required.
- West Virginia: While adopting the DHS guidelines, the state added a section on essential infrastructure that included “production of raw materials including without limitation coal and oil and natural gas.”
At least 24 states issued their own definitions, including:
- Arizona and Ohio: These states issued orders that were much less detailed than the DHS guidance, breaking down the essential energy industries as follows: “…operation and maintenance of utilities, including water, sewer and gas; electrical (including power generations, distribution, and production of raw materials); …oil and biofuel refining.” They direct the list to be “construed broadly to avoid any impacts to essential infrastructure.”
- Delaware: The state follows the DHS guidelines, but uses much broader definitions. Instead of breaking the electric and natural gas industries into their component parts, it simply includes “electric power, generation, transmission and distribution,” and “natural gas distribution” under its section on utilities. The order also broadly includes oil and gas development and coal mining.
- Florida: The state’s order reflects the DHS’s guidelines, while including a more detailed list of specific industries and broadly includes all workers supporting the energy sector “regardless of the energy source.” It also specifically includes workers involved in the “physical or cyber security of the energy system.”
- Massachusetts: The state’s order largely follows the DHS guidelines, but goes into much greater detail in defining the various “essential services.” In addition to breaking the energy sector down into even more detailed components than the federal guidance, it also includes a section on “steam workers” involved in district heating and electrical services, and workers “supporting new and existing construction projects, including, but not limited to, pipeline construction.”
- Michigan, Minnesota and New Jersey: While broadly following the DHS guidelines, each of these states also incentivized child care facilities to prioritize service to essential business workers.
There are nearly 5 million early care and education professionals who care for children younger than age of 5 in center- and home-based child care settings across the U.S. Home-based providers, many of whom are self-employed and small-business owners, make up the large majority of this workforce.
Although many early care and education professionals have extensive experience (approximately 50% have at least 13 years in the field), they generally earn very low wages. The average wage for early care and education professionals is less than $11 an hour, or just over $22,000 per year. Their working conditions vary by setting and do not necessarily include benefits that are typically available to educators of older children, such as paid time for planning and professional development, retirement and health insurance.
The predominately female (94%) early care and education workforce is more racially and linguistically diverse than K-12 teachers. People of color comprise 40% of early care and education professionals, and 22% are foreign-born.
Why It's "Essential"
Child care providers are often referred to as the workforce behind the workforce. Parents and employers rely on child care to allow them to work and conduct business resulting in an estimated economic impact of over $99 billion in revenue and spillover to other industries. This is especially evident in the current public health crisis as states are depending on child care providers to continue to operate to provide care for the children of essential workers, even as they have almost uniformly closed K-12 schools.
Some states have also designated child care providers as “essential workers” so they are eligible for any supports or services offered by the state and are able to continue working to ensure essential workers in other critical industries can also work and meet the health and safety needs during the crisis.
At least 28 states are including child care providers in their definition of essential workers. Below are a few examples.
At least two states are offering financial assistance to pay for child care for essential workers.
Agriculture and Food Production
The agriculture and food service sectors encompass a wide range of activities, including animal and crop production, manufacturing of food products, support services such as testing and inspections, and restaurants and retail sales. Food service workers have been some of the most visibly impacted by state stay-at-home orders as restaurants have been forced to close or adapt to takeout-only service. Agriculture and food production businesses and workers up the supply chain have faced their own challenges. From reports of significant supply chain issues forcing farmers to destroy crops and spill gallons of milk, demand for typical products farmers and production facilities would be sending to restaurants and schools is way down, while the demand for grocery-ready items has increased.
Employment Picture Before COVID-19
According to the U.S. Department of Agriculture (USDA), 11% of U.S. employees work in agriculture and its related industries. In 2018, direct on-farm employment accounted for 1.3% of U.S. employment and food and beverage manufacturing made up 1% of U.S. jobs. Food service, eating and drinking establishments accounted for 6.4% of employment and food and beverage stores supported 1.6% of the workforce.
Bureau of Labor Statistics (BLS) job outlook data projects that the demand for workers in agriculture will remain steady from 2018 to 2020. While demand is expected to increase for agricultural products over the next decade, employment demand may be limited by continued automation in the sector. Simultaneously, BLS data projects the demand for food and beverage service-related workers to grow much faster than average. A grand total of about 1.5 million additional jobs in food and beverage service is expected by 2028.
All workers who are part of the 2.1 million farms, 935,000 restaurants and more than 200,000 registered food manufacturing, processing and storage facilities are considered essential by the U.S. Cybersecurity and Infrastructure Security Agency (CISA). For agriculture workers and those on the production side of the food system, this meant continuing to work to feed the country. States forming their own essential worker designations largely adhered to CISA’s guidelines, but tended to be a bit more specific in listing the particular activities they considered essential. For example, Montana’s essential worker order listed a number of hyper-specific businesses the state considers critical to its food and agriculture systems, including production bakeries, licensed cannabis cultivators and animal feed producers. Kansas is another example of a state that went into greater detail on essential businesses, including workers who manufacture or maintain agriculture equipment and those who manufacture or distribute agricultural supplies, such as seed or chemicals.
For agriculture and food production workers who have continued to work during the pandemic, health has been a top concern as facilities figure out how to adapt processes to protect workers. While President Donald Trump signed an executive order at the end of April designating meat processing plants, for example, as essential infrastructure, some states have been simultaneously grappling with COVID-19 outbreaks at these processing facilities.
For restaurant and food service workers, unlike many of the other critical sectors, the essential worker designation did not necessarily mean that these workers continued their jobs as normal. Most states ended up requiring restaurants to close in-person dining for a period of time, resulting in many food service workers losing their jobs even if restaurants stayed open for takeout-only service. In response, some states are taking extra steps to help food service workers who may have lost their jobs and those who have been able to continue to work. California, through executive order, is granting two weeks of supplemental paid sick leave to food-sector workers, including farm and agricultural workers, grocery store workers and fast food employees.
Critical Retail Sector
The retail industry is the second-largest employment sector in the United States, accounting for nearly 1 in 10 of all domestic workers. While salespersons, cashiers, stock clerks and first-line supervisors in brick-and-mortar stores are primary examples of retail workers, those involved in the facilitation and execution of e-commerce, such as delivery drivers and warehouse packers, are a growing segment of the sector’s workforce. According to recent research, four occupations comprise the bulk of the industry, constituting roughly 79% of all retail worker employment: retail salespersons (about 25%), drivers and sales workers (24%), cashiers (20%), and stock clerks and order fillers (11%).
The retail workforce consists primarily of full-time employees (roughly two-thirds of the labor force) who work for companies with more than 1,000 employees. Walmart is the country’s largest private-sector employer, employing 10% of all retail workers.
Demographically, 40% of retail workers are women, although the gender distribution varies widely by occupation within the sector. Cashiers, who earn an average of $8.25 per hour, are predominantly women, whereas delivery drivers, who earn an average of $16.20, are predominantly men. The median retail worker age is 40, with 28% of workers reporting educational attainment beyond a high school diploma. The racial makeup of the retail sector mirrors that of the overall workforce: 62% non-Hispanic white, 17% Hispanic, 13% African American and 5% Asian.
Why this sector is considered “essential” and what the label means for workers.
The retail industry is composed of a complex network of occupations working in concert to meet the everyday needs of people across the country. From keeping grocery store shelves stocked to delivering consumer goods, many occupations within retail are deemed essential due to the role they play in maintaining everything from food to personal security. For this reason, all states with available guidance have deemed occupations within the retail sector essential. Workers in the following settings have most commonly been deemed essential across the states: grocery stores, pharmacies, medical supply stores, convenience stores, pet stores, hardware stores, office supply stores and liquor stores. Since the majority of retail occupations cannot be done remotely, many essential retail employees have continued carrying out their work in person. This has sparked debate around worker protections as retail workers, who are often low-wage earners with limited benefits, such as grocery store clerks, face risks to exposure daily.
All states with available guidance have deemed occupations within the retail sector essential. However, essential retail occupations vary based on state.
Colorado and at least six other states deemed medical and/or recreational cannabis dispensaries essential.
All but five states—-New York, Massachusetts, Washington, New Mexico and Vermont—deemed firearms stores nonessential.
At least 20 states have adopted federal guidance from the U.S. Department of Homeland Security’s Cybersecurity and Infrastructure Security Agency on essential workers. The guidance outlines the following retail workers, among others, as essential:
- Workers supporting groceries, pharmacies, convenience stores and other retail (including unattended and vending) that sell human food, animal and pet food and pet supply, and beverage products. They include retail customer support service and information technology support staff necessary for online orders, pickup and delivery.
- Restaurant carry-out and quick-serve food operations, including dark kitchen and food prep centers, carry-out and delivery food workers.
- Workers and firms supporting the distribution of food, feed, beverage and ingredients used in these products, including warehouse workers, vendor-managed inventory controllers and blockchain managers.
The critical trades sector is composed of professionals trained in any number of key services that are critical to keeping homes, offices and other buildings operating. Just some of the professions that can be considered a part of this sector include electricians, plumbers, HVAC technicians, wastewater treatment plant operators, exterminators and many others.
CISA’s guidelines, as well as many of the states who have adopted their own, consider workers in these trades “critical infrastructure workers,” and recognize the work they perform as “necessary to sustain and protect life.” While many workers have been teleworking from home, critical tradespeople have been working to keep office buildings operating. And while folks have transitioned to spending the majority of their time at home, tradespeople have continued to uphold safety and quality of life standards for residences.
Employment Picture Before COVID
Prior to the onset of COVID-19, most of these critical trades were facing huge projected growth coupled with workers shortages. According to BLS data, most critical trades were projected to see huge growth in the next decade, adding 7.5 million jobs across the different subsectors. Additionally, the BLS projected in 2018 that many of the critical trades requiring some form of formal apprenticeship training would be growing faster to much faster than average. Plumbers, pipefitters and steamfitters, for example, were projected to have 14% employment growth from 2018 to 2028. In addition to the projected future growth, many states were already experiencing critical worker shortages in the skilled trades, pushing wages higher for potential workers in these jobs.
For many working in the building and construction trades, the distinction of their jobs as essential meant continuing to work to build new structures and to maintain existing ones. While many workers have been relegated to their homes for now, plumbers, electricians, HVAC technicians and contractors have been working to keep their office buildings operating.
For the 20 states deferring to CISA’s guidelines, a wide range of trades are considered essential, Including those supporting the construction, maintenance or rehabilitation of several sectors, from energy to public works and infrastructure to communications. Many of the states that have developed their own guidelines use similarly broad language to encompass as many of these professionals as possible. Colorado, for example, refers to construction and skilled trades broadly, but only gives a few examples and relies heavily on “including but not limited to” language. Similarly, Alabama simply refers to any workers in “construction or construction-related services,” as essential. Illinois has taken a slightly different approach in that the state specifically lists some examples of what it considers critical trades in its essential worker order. These include, but are not necessarily limited to, plumbers, electricians, exterminators, cleaning and janitorial staff, and security workers. Massachusetts’ guidance gets even more specific, with the state listing which “construction-related” activities it considers necessary to maintain the safety, sanitation and essential operation of residences, businesses and buildings such as hospitals. The state’s list goes on to include specific types of work sites and projects considered essential too.
In 2015, the U.S. Department of Homeland Security (DHS) released a “Transportation Systems Sector-Specific Plan.” This report details how the risk management framework is implemented given the unique characteristics and risk landscape of the transportation sector. Since the outbreak of the novel coronavirus, these workers have continued to carry out essential activities.
According to the U.S. Cybersecurity and Infrastructure Security Agency (CISA), one of the 16 critical infrastructure sectors is the transportation systems sector, which consists of seven key subsectors: highways, aviation, maritime, rail, mass transit, pipelines and postal and shipping. The personnel comprising this sector come from public, private and industry organizations.
Why Is This Sector “Essential?”
The economy is heavily reliant on trade and travel occurring throughout the nation. What that means, in particular, is that the transportation sector is designed to support the safe and efficient movement of people, goods and products for business and pleasure. Even when disruptions in the supply chain do occur, this sector must respond, adapt and adjust accordingly. This sector has also played a vital role during the pandemic response, as well as in ongoing recovery and relief operations underway in states.
According to the DHS and the Centers for Disease Control and Prevention (CDC), this sector lends support to emergency managers, local governments, heads of transit authorities, federal law enforcement and local first responders, as well as long-haul truck drivers, maritime pilots, aviation and rail workers and rideshare and taxicab drivers. Without the work carried out by these unsung heroes, the response to the pandemic would have been severely limited, especially in getting essential medical supplies and equipment to public health officials on the frontlines.
Of the 42 states, the District of Columbia (D.C.), Guam, Puerto Rico and the U.S. Virgin Islands that have adopted guidance on who is considered an “essential worker,” the general elements included in the definition of “transportation and logistics” include airlines, railroads, taxis, private transportation providers and public and private mail and shipping services. For example:
- Alabama defined “infrastructure operations” to include the maintenance, operation or construction of dams, airports, ports, roads and highways and mass transit; automotive sales and repair, vehicle rental and taxi services, network providers (such as Uber and Lyft), freight and passenger rail, motor carriers, pipelines, and other transportation infrastructure and businesses, water and waste water systems, transportation companies such as airlines and bus lines, hazardous waste disposal, hotels and commercial lodging services and RV parks.
- New York defined “essential infrastructure” to include airlines/airports; commercial shipping vessels/ports and seaports and transportation infrastructure such as bus, rail, for-hire vehicles and garages.
- Washington defined “essential workers” to include employees supporting or enabling transportation functions such as dispatchers, maintenance and repair technicians and workers engaged in snow removal and avalanche control. The order also included workers such as truck drivers hauling hazardous and waste materials, as well as rideshare and taxicab, postal and shipping, mass transit, ferry, rail and air transportation workers.
- D.C. defined “transportation and logistics” to include businesses that ship or deliver groceries, food, goods or services directly to residences; taxis, ride-sharing companies and other private transportation providers providing transportation services necessary for Essential Businesses or Essential Governmental Functions and other purposes expressly authorized; businesses providing mailing and shipping services, including post office boxes and moving companies and bicycle sales, management and repair business.
A search of legislation addressing transportation and COVID-19 revealed that at least six states—Hawaii, Massachusetts, Minnesota, New Jersey, New York and Pennsylvania—and Puerto Rico have introduced 19 pieces of legislation. At least two states—Hawaii and New York—have so far approved legislation. And, in Wisconsin, the governor recently proposed to set aside $100 million to offset costs associated with temporarily shutting down the construction industry. The bills primarily focused on pandemic response and relief efforts, essential workers and allocating resources.
SB 75 (to governor) would appropriate $14 million to the state Department of Transportation for outbreak control, contact tracing and personal protective equipment. The bill also would require a monthly report to the governor and legislature that details expenditures, effective June 1, 2020.
SD 2922 (pending) would allow school districts to honor existing vendor contracts pertaining to school transportation, food services and other contracts deemed essential by the superintendent of schools. Such vendors would also be required to maintain the same number of employees they employed before the pandemic. HB 4701 (pending) would appropriate $50 million to the “COVID-19 Regional Transport Authority Emergency Fund,” which would provide financial assistance to regional transportation authorities in high impact areas affected by COVID-19. Additionally, such assistance would include grants for loss of revenue, unexpected expenses, joint procurements and loss of other financial aid due to COVID-19.
HF 976 (failed) and SF 3255 (failed) would have required a school bus driver to activate the prewarning flashing amber signals or flashing red signals and the stop arm signal when the bus was stopped to deliver goods, schoolwork, supplies or other items for students during the pandemic. SF 3255 also would have required the state’s transportation commissioner to repot all expenditures of federal funds to the legislature by Feb. 15, 2021, regarding coronavirus relief funds. HF 1447 (failed) would have extended the expiration date for out-of-state driver’s licenses by 30 days for commercial licenses and 60 days for non-commercial licenses. The bill also would have required procedures to be established for on-road driver tests during the peacetime public health emergency and in a manner that ensured personal protective measures for applicants and examiners, as well as complied with guidance and recommendations from state and federal health agencies. Additionally, the bill would have extended the vehicle registration expiration period for registrations expired on Feb. 29, 2020, during the pandemic or any day of the month in which the peacetime public health emergency period terminates.
SF 4450 (failed) would have urged the federal government to extend the deadline for the full implementation of REAL ID provisions set to take effect on Oct. 1, 2020. SF 4515 (failed) and HF 4543 (failed) would have directed the Metropolitan Council to temporarily halt regular route transit in the metropolitan transit area to curb the spread of the novel coronavirus.
ACR 168 (pending) would urge the federal government to extend the deadline for the full implementation of REAL ID provisions set to take effect on Oct. 1, 2020. The U.S. Transportation Security Administration recently announced it would delay the deadline by a year. More specifically, beginning on Oct. 1, 2021, every air traveler 18 years of age and older will need a REAL ID-compliant credential to fly within the United States.
AB 10182 (pending) would extend the renewal of driver’s licenses, identification cards and inspections of motor vehicles for three months. AB 10303 (pending) would extend the period in which paratransit fees are suspended through Aug. 31, 2020. The bill also would require that certain drivers be provided with hand sanitizer, disposable sterile gloves, face masks and training on preventive measures. AB 10347 (pending) would create a tax deduction of up to $5,000 for the transportation and personal protective equipment expenses of health care professionals and emergency medical technicians. SB 7508 (enacted) provided the state’s fiscal year 2021 budget and included provisions allowing the state to borrow up to $10 billion to provide the spending flexibility required for the programs and capital plan. SB 8176 (pending) would authorize the state Thruway Authority to eliminate all tolls for trucks and delivery vehicles transporting essential supplies, including medicine, medical supplies, cleaning products, food, beverages and construction equipment.
Legislation considered in Pennsylvania has sought to add to the governor’s powers during a pandemic. HB 1498 (pending) would exempt persons providing essential goods and services to hospitals. This would include food and water, pharmaceuticals, medicine and acute care supplies, durable medical equipment and surgical supplies and laundry and sanitary supplies. HB 1788 (pending) would allow a vehicle operating on behalf of a perishable medical supply dealer who is hauling supplies to or from a manufacturing plant to operate on highways 24 hours a day, seven days a week. The vehicle would be required to have a decal and the gross weight of such vehicle could not exceed 80,000 pounds. HB 2400 (pending) would direct the secretary of Community and Economic Development to issue a waiver to the governor’s COVID-19 order to all public and private construction activities if social distancing and other mitigation measures by the U.S. Centers for Disease Control and Prevention are followed.
The governor proposed to borrow $100 million for expenses related to increased capital costs due to interruptions of work in the event construction was temporarily suspended during the pandemic. This proposal was not enacted into law.
HJR 638 (vetoed) would have directed the Department of Transportation and Public Works to take necessary measures to exempt toll collections during the pandemic. This bill was vetoed by the governor.
Other NCSL Transportation Resources
- A recent NCSL Blog post explores how state transportation departments and the U.S. Department of Transportation have responded to supply chain disruptions in the nation's trucking industry.
- Legislatures around the country reacted fast to discuss and help tackle some of the most pressing issues faced by COVID-19 first responders.
- NCSL staff examines how states, localities and the private sector are getting creative by using drones for pandemic response in a new NCSL Blog.