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Essential Services and Workers During the COVID-19 Emergency

March 26, 2020  by  Steve Gross
Category:  Operating Policies COVID-19

Essential Services and Workers During the COVID-19 Emergency

Editor's note: This post was updated:

  • March 27 to include affidavits created by the City of Sammamish related to essential and non-essential construction activities and inspections.
  • April 1 to include the governor's additional guidance bulletin regarding essential activities, originally issued on March 31 and which will be periodically updated.

Governor Inslee issued Proclamation 20-25 (Stay Home —  Stay Healthy) on March 23, 2020. The Proclamation requires everyone to stay home unless they are supporting “essential critical infrastructure.”

This blog focuses on how the Proclamation affects local agencies as they continue to respond to this emergency.

Essential Critical Infrustructure Workers

No one has argued that local agencies are not essential businesses. Nor does anyone expect that they will close completely. So, the question becomes which agency employees are part of the “essential workforce.” To answer this question, we look to the Essential Critical Infrastructure Workers list.

Some employees are clearly designated as essential. Public health, police, and fire employees, as well as those staff performing activities necessary to support first responders.

Employees necessary for public works projects and critical construction may be essential. For example, employees that repair water and wastewater facilities are specifically included, but other staff at those facilities that perform work not directly related to the operation, such as routine maintenance, landscaping, or external painting, may not be essential.

But there continues to be gray areas. Other Community-Based Operations is on Page 10 of the Essential Critical Infrastructure Workers list.

It seems to emphasize a direct connection between the work performed and an essential government function. While the list does not provide a job-by-job answer, it does give some guidance to local agencies to help those agencies decide which staff are “essential.”

  • Is the worker defined as “critical” in your continuity of operations plan? Has your agency defined its Mission Essential Functions? If so, does the worker support one of those functions? (If you don’t have a list of critical workers, consider adopting one as part of your emergency proclamation or subsequent administrative orders).
  • Does the work ensure continuity of building functions? (HVAC maintenance may be included, while cleaning staff is not).
  • Does the work allow other critical work to take place? (Payroll, IT, and HR functions are specifically included).

Essential Construction Work

Recent questions to MRSC appear to focus on a few specific areas, such as construction.

The Proclamation (as clarified by the Governor’s March 25, 2020 memo) allows for construction work only on essential facilities. Except for that and to secure existing sites, all commercial and residential construction is halted. For local agencies this raises the question of how much can or should an agency limit operations related to what is considered essential construction? Does an agency have to continue to inspect projects in the field? How does it process inspection requests and other processes when the office is closed?

There is no clear answer to these questions. If you believe the Proclamation is directive, i.e., it requires these construction activities to continue, then there is an argument that local governments must maintain adequate processes to support those activities. If you believe the Proclamation is permissive, i.e., it allows, but does not require those construction activities to continue, then there is an argument that local governments retain their discretion to allocate resources as they see fit and can reduce resources supporting construction activities.

 Local agencies are balancing the “stay at home” directive with the need to continue to provide services to the public. Large agencies may be more capable of providing services remotely and may have more remote work capacity than smaller agencies. For example, the City of Port Townsend modified its permitting procedure during temporary office closure to allow for electronic submittal of inspections by photograph.

March 27 Update: The City of Sammamish provided the following affidavits as examples related to essential and non-essential construction and inspections.

Recommended Resources

MRSC is coordinating with its partners to provide up-to-date information as the emergency progresses. The starting place is our Coronavirus (COVID-19) Resources for Local Governments page. From that page, you can look at our COVID-19 Frequently Asked Questions and other pages to see the latest information.

MRSC is a private nonprofit organization serving local governments in Washington State. Eligible government agencies in Washington State may use our free, one-on-one Ask MRSC service to get answers to legal, policy, or financial questions.

About Steve Gross

Steve Gross joined MRSC as a Legal Consultant in January 2020.

Steve has worked in municipal law and government for over 20 years as an Assistant City Attorney for Lynnwood, Seattle, Tacoma, and Auburn, and as the City Attorney for Port Townsend and Auburn. He also has been a legal policy advisor for the Pierce County Council and has worked in contract administration.



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