The federal government has taken a supporting role as state and local governments and private companies institute an evolving patchwork of responses to the COVID-19 pandemic. On March 19, 2020, the Cybersecurity and Infrastructure Security Agency (CISA), operating under the Homeland Security Act of 2002, issued guidance and an accompanying list of “Essential Critical Infrastructure Workers.” On March 19, 2020, the Cybersecurity and Infrastructure Security Agency (CISA), operating under the Homeland Security Act of 2002, issued guidance and an accompanying list of “Essential Critical Infrastructure Workers.”  CISA’s list is intended to promote the ability of essential workers to continue to work during periods of community restriction, access management, social distancing, and closure orders or directives.

CISA identifies Food & Agriculture as a critical industry and describes essential workers in this industry to include the following (a complete list can be reviewed at the link noted above):

• Workers supporting groceries, pharmacies and other retail that sells food and beverage products

• Restaurant carry-out and quick serve operations - Carry-out and delivery food employees

• Food manufacturer employees and their supplier employees—to include those employed in food processing (packers, meat processing, cheese plants, milk plants, produce, etc.) facilities; livestock, poultry, seafood slaughter facilities; pet and animal feed processing facilities; human food facilities producing by-products for animal food; beverage production facilities; and the production of food packaging

• Employees and firms supporting food, feed, and beverage distribution, including warehouse workers, vendor-managed inventory controllers and blockchain managers

• Workers supporting the sanitation of all food manufacturing processes and operations from wholesale to retail

• Workers in food testing labs in private industries and in institutions of higher education

• Employees of companies engaged in the production of chemicals, medicines, vaccines, and other substances used by the food and agriculture industry, including pesticides, herbicides, fertilizers, minerals, enrichments, and other agricultural production aids

• Workers who support the manufacture and distribution of forest products, including, but not limited to timber, paper, and other wood products

Importantly, the CISA list above identifies food packaging and other examples of products that people may not generally recognize as being regulated by FDA as “food,” such as pet food and animal feed.  In addition, it also notes restaurant carry-out and quick serve food operations as critical infrastructure, which also is dependent on the use of paper and plastic food service items to package, deliver, and serve food products. 

CISA’s list is ‘advisory’ and is intended to promote the ability of essential workers to continue to work during periods of community restriction, access management, social distancing, and closure orders or directives. The question with respect to state and local officials is whether they will recognize that workers along the supply chain who contribute to the manufacture of these finished goods will also be considered essential.