ILMA Members Considered Essential as Governors Issue Closing Orders 

Updated March 23, 2020

Governors around the country issued a series of executive orders, closing non-essential businesses in their states. A complete state-by-state analysis is available hereAs we interpret these orders, in most states ILMA Manufacturing Members are considered essential or life-sustaining and can continue physical operations. For ILMA Distributor Members, we believe they can continue to operate in most states as either "Petroleum and Petroleum Products Merchants Wholesalers” or based on their ability to "enable operations that encompass movement of cargo and passengers.”

The Department of Homeland Security’s Cybersecurity and Infrastructure Security Agency (CISA) issued a March 19, 2020 memorandum, identifying “critical infrastructure industries.” While the document is advisory in nature, it is the federal government’s current opinion on what constitutes “critical infrastructure” under the current emergency. ILMA members’ operations fall under different categories in the CISA guidance.

Because of likely confusion, there are steps all ILMA members can take in anticipation of an enforcement “visit”:

  • Print out and have available a copy of the Governor’s order and any accompanying list of essential vs. non-essential businesses. Members operating in Pennsylvania, click here. Members operating in California fall under the CISA memorandum, referenced above. 

  • If there’s confusion about where your facility falls on the list, make the following points:

    • Your manufacturing facility/business’ NAICS Code is 324191 (Petroleum Lubricating Oil and Grease Manufacturing), meaning it falls under the broad class of “Petroleum Manufacturing.”

    • President Trump has invoked the “Defense Production Act,” and lubricants are considered priority “maintenance, repair and operating supplies” under the regulations implementing the statute. 

To the extent that you are able to continue operations, OSHA’s “general duty” clause requires that you do your part to ensure the health and safety of workers, including social distancing measures in confined spaces (including offices). ILMA’s coronavirus page on its website contains resources to help you respond to the COVID-19 disease outbreak in your workplace.  

ILMA recognizes that your employees are your most valuable asset, and how they are experiencing the stress from the unknowns and upheavals in their personal lives and work.  We have received member inquiries about navigating workplace and employee issues. ILMA will publish some FAQs next week to assist you, including an analysis of the “Families First Coronavirus Response Act.” In most instances, there are going to be both fact intensive issues and State employment laws that apply to your situation, so your local counsel may be best suited to answer specific situations.

As always, if you have questions or need assistance, contact:

Holly Alfano, halfano@ilma.org
Jeff Leiter, jleiter@bmalaw.net
Matt Levetown, mlevetown@bmalaw.net​​