As “stay-at-home” orders have rolled out across the United States, businesses, particularly financial services companies, have scoured definitional provisions to understand whether all forms of financial services companies have been designated as “essential businesses” and therefore exempt from closure requirements. What numerous financial services firms have found is that many categories of the financial services sector tend to be defined as essential businesses, but jurisdictions do not consistently define what is an essential financial services business. As a result, in some cases only banks and insurance companies have been specifically exempted from stay-at-home orders, whereas in other cases, jurisdictions apply and even expand upon the guidance that was issued by the Department of Homeland Security’s Cybersecurity and Infrastructure Security Agency (CISA) on March 19, 2020.

The CISA guidance was issued in an effort to provide communities and state governments with an initial list of what constitute “Essential Critical Infrastructure Workers” to ensure continuity of functions critical to public health and safety as well as economic and national security.[1] With respect to financial services, the guidance states that the following workers are considered essential:

  • Workers who are needed to process and maintain systems for processing financial transactions and services (e.g., payment, clearing, and settlement; wholesale funding; insurance services; and capital markets activities);
  • Workers who are needed to provide consumer access to banking and lending services, including ATMs, and to move currency and payments (e.g., armored cash carriers); and
  • Workers who support financial operations, such as those staffing data and security operations centers.

Subsequently, US Treasury Secretary, Steven Mnuchin, issued a press statement emphasizing that the financial services sector is a Critical Infrastructure Sector.[2]

March 25 OCC Guidance

On March 25, the Office of the Comptroller of the Currency (OCC) amplified the CISA guidance by issuing guidance of its own that instructed national banks, federal savings associations and federal branches of non-U.S. banks on procedures that should be taken to safeguard the wellbeing of essential employees, such as command center workers, data center operators, client service center workers, field engineers and other technicians, cybersecurity and communications workers for critical infrastructures, and janitorial and cleaning personnel.[3]

The guidance stated that critical infrastructure workers should adhere to normal work schedules and, not surprisingly, follow CDC guidance regarding measures to limit the spread of COVID-19. In addition, the OCC stated that banks should consider the following steps for employees and contractors operating in, or moving between, restricted areas to facilitate the continued operation of essential services:

  • Update business continuity plans to include workforce considerations that address movement restrictions.
  • Engage with local law enforcement and other authorities responsible for enforcing stay-at-home and similar orders to identify local requirements and communicate the need for employee travel consistent with the CISA guidance.
  • Provide the following documents to employees and contractors so they may have them readily available during travel in restricted areas:
    • Paper copy of CISA’s “Memorandum on Identification of Essential Critical Infrastructure Workers During COVID-19 Response.”
    • Documentation, on company letterhead, detailing work-related travel and how it aligns with the financial services sector list of essential critical infrastructure workers.
    • Company identification card.

If you wish to receive periodic updates on this or other topics related to the pandemic, you can be added to our COVID-19 “Special Interest” mailing list by subscribing here. For any other legal questions related to this pandemic, please contact the Firm’s COVID-19 Core Response Team at FW-SIG-COVID-19-Core-Response-Team.

[1] CISA, Guidance on the Essential Critical Infrastructure Workforce: Ensuring Community and National Resilience in COVID-19 Response (Mar. 19, 2020), https://www.cisa.gov/publication/guidance-essential-critical-infrastructure-workforce.

[2] Steven Mnuchin, Memorandum for Financial Services Sector (Mar. 22, 2020), https://www.aba.com/-/media/documents/incident-response/Financial-Services-Sector-Essential-Critical-Infrastructure-Workers.pdf.

[3] OCC, Bull. 2020-23 (Mar. 25, 2020), https://occ.gov/news-issuances/bulletins/2020/bulletin-2020-23.html; OCC, Coronavirus Disease 2019 (COVID-19) Frequently Asked Questions for National Banks and Federal Savings Associations (retrieved Mar. 26, 2020), https://occ.gov/topics/supervision-and-examination/bank-operations/covid-19-information/covid-19-faqs-for-national-banks-and-fsa.html.

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If you wish to receive periodic updates on this or other topics related to the pandemic, you can be added to our COVID-19 “Special Interest” mailing list by subscribing here. For any other legal questions related to this pandemic, please contact the Firm’s COVID-19 Core Response Team at FW-SIG-COVID-19-Core-Response-Team@mayerbrown.com.