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Go to Work, Go to Jail

How Can I Tell If I’m Employed in a Critical or Essential Industry Under Shelter-at-Home Orders?

Although written from the perspective of the employee, this article is just as useful to an employer that wants to know how to comply with the new Orders.

Freddy the Fabricator Asks the Following Questions:  “I work for a machine shop in California.  My County and California have issued “Shelter-in-Place” Orders excepting people who work in “essential businesses” or “Critical Industries.”  I don’t believe the machine shop is an “essential business” but my  boss says his business is essential to his customers.

I am scared to leave the house for work, especially now that the Orders require facial masks to stop the spread between asymptomatic people.  (1) How can I find out if the business really is or is not “essential.”  (2) If the business is essential, is there a way around it?  (3) If it is not essential, can my employer fire me if I do not come to work and shelter-in-place? (4)  If I do get fired will I still be able to collect unemployment benefits?”

Dear Freddy: These questions are novel and complex because of the unprecedented ever-changing COVAD-19 context.  Additionally, answers may depend on the language of shelter-in-place orders unique to each county or municipality. I cannot answer all the questions with certainty.  So, take my answer with a grain of salt.

Find and read the California and your County Shelter in place Orders.

They are accessible over the internet.  For California’s Order, click here. I live in Santa Clara County.  Many Counties have issued their own Executive orders.  Check the website for your County.  For Santa Clara County’s Order, click here.

Alert:  Orders may change at any time.

California’s Order refers to 16 “Critical Industries.”   Those include:

Santa Clara County Order Paragraph 13(f) has an even more extensive list of what it considers “essential business.”  There is what I call a “catch all” provision.  Paragraph 13(f)(xix) includes: “Businesses that supply other Essential Businesses with the support or supplies necessary to operate, but only to the extent that they support or supply these Essential Businesses. This exemption shall not be used as a basis for engaging in sales to the general public from retail storefronts.”

Determine what your business does, and who your customers are.

In the case of a machine shop, most likely you are engaged in grinding, drilling, shaping, with or without the aid of computer assisted cutting and shaping tools, working with a variety of materials like metals and plastics.  Your customer base might include those other critical industries that incorporate your product into military, medical or food production or transportation industries. For instance, a machine shop does not perform the essential function of processing food.  On the other hand,  your shop may fabricate parts that go into food processing machinery.  Your shop could be considered critical under these rules if it fabricates parts necessary for the continuation of any of the above 16 Sectors, even though your shop does not fall exactly within the function of any one of them.  So, in the end, the answer to your first question depends on who buys your parts—a gumball machine manufacturer or a ventilator assembler?

If your employee has government contracts or supplies materials to employers under government contracts, he may be engaged in a Critical Industry under the California Order.  Critical industries include companies that are key contributors to supply chains/distribution or the digital infrastructure. (e.g., third-party vendors, suppliers, service providers, and contractors) who are necessary to maintain critical operations and services, and solutions if potential interruptions occur to the supply chain. We have no State guidance as to how much of the total production must be dedicated to that purpose in order to qualify as a critical industry.  I suggest it would have to be “substantial.”  Santa Clara County’s Order provides some guidance.  Businesses are “essential” only to the extent that they supply other Essential Businesses with the support or supplies necessary to operate.

So, if you are making parts for a gumball machine you are not performing work for an essential business.  If, however, you make parts for a ventilator you are likely performing work in the supply chain to an essential business.  Both employees could be working for the same company at the same time doing different jobs.  But only the employee supporting an essential business is exempt from the shelter-in place-order.

If you work for an essential or critical business, or you are performing work that contributes to the supply chain of an essential or critical business, is there any way around it?

Assuming you have a viable job working for an essential business, then consider whether you qualify for protections under other laws.

  • The Families First Corona Virus Response Act (FFCRA) became effective April 2nd, 2020. It creates two new forms of paid leave benefits for employees impacted by the COVID-19 pandemic. (1)  Emergency paid sick leave for those under quarantine, advised to self-quarantine, caring for someone with COVAD symptoms, or caring for children whose school has closed and (2)  Expanded Family Medical Leave Act providing 12 weeks leave though you are you are not personally sick if you qualify. You qualify if you are unable to work or telework due to the need to care for your child whose school has been closed, or whose child provider is unavailable, due to COVID-19 concerns.  See my article on this topic for a more thorough discussion.
  • The Americans with Disabilities Act, The Fair Employment Act, and if your business employs 50 or more employees then the California Family Rights Act, the Family Medical Leave Act (You need to care for an immediate family member with a serious health condition.)
  • Lesser known leaves include School Activities Leave; Leave for Victims of Domestic Violence, Sexual Assault and Stalking; and Leave to Perform Emergency Duties or Attend Related Training, Military Leave, serve on a jury or as a witness, time off to vote, Crime Victims Leave, Leave for School Activities, Pregnancy Disability Leave among others.
  • There may be other operative laws granting time off beyond the scope of this article.


If my job is not essential, can my employer fire me if I do not come to work and shelter-in-place?

Section 2856 of the California Labor Code provides: “An employee shall substantially comply with all the directions of his employer concerning the service on which he is engaged, except where such obedience is impossible or unlawful, or would impose new and unreasonable burdens upon the employee.”

Would you commit an unlawful act if you complied with your employer’s direction to come to work to perform a non-essential or non-critical job?

YES! California’s Governor issued Executive Order N-33-20 pursuant to the authority granted him by the California Emergency Services Act [8550 – 8669.7.]  Paragraph 4) of that Order states: “This Order shall be enforceable pursuant to California law, including, but not limited to, Government Code section 8665.  Government Code Section 8665 provides:

Any person who violates any of the provisions of this chapter or who refuses or willfully neglects to obey any lawful order or regulation promulgated or issued as provided in this chapter, shall be guilty of a misdemeanor and, upon conviction thereof, shall be punishable by a fine of not to exceed one thousand dollars ($1,000) or by imprisonment for not to exceed six months or by both such fine and imprisonment.

Santa Clara County’s Shelter-in-Place Order Paragraph 11 states:

Pursuant to Government Code sections 26602 and 41601 [for the execution of all orders of the local health officer issued for the purpose of preventing the spread of any contagious, infectious, or communicable disease] and Health and Safety Code section 101029, the Health Officer requests that the Sheriff and all chiefs of police in the County ensure compliance with and enforce this Order. The violation of any provision of this Order constitutes an imminent threat to public health.

Health and Safety Code Section 120295 provides that any officer charged with the responsibility of enforcing these Orders who fails to do is guilty of a misdemeanor, punishable by a fine of not less than fifty dollars ($50) nor more than one thousand dollars ($1,000), or by imprisonment for a term of not more than 90 days, or by both. He or she is guilty of a separate offense for each day that the violation continued.

So, it would appear that to the extent your employer directs you to violate a shelter-in-place order you are not bound to follow his directions.  If he or she did fire you may have a case of wrongful termination in violation of public policy.

If I get fired can I collect unemployment benefits?

YES!  Ordinarily, abandoning a job without good cause or insubordination would disqualify you from receiving benefits, but not in this case.  The EDD Precedent Decisions follow Section 2856 above.  In your case following the employer’s directive would require you to break the law and subject yourself to arrest and or prosecution.  By definition such a directive is unreasonable and need not be followed.

Again, this situation is in flux.  Be vigilant for new developments.

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