California Community College Chancellor’s Office Memorandum on Continuity of Education for Programs Supporting the Essential Workforce


The California Community College Chancellor’s Office issued a memorandum dated July 6, 2020 clarifying that, when remote instruction is not practical, community colleges may conduct — and should resume — in-person instruction for programs serving the Essential Critical Infrastructure Workforce, defined below.

Significantly, such classes may be offered only if consistent with local public health orders, and, where authorized, must comply with physical distancing and face coverings requirements established by the California Department of Public Health (CDPH) and local public health officials.

The Governor’s Executive Order N-33-20 issued March 19, 2020, and Order of the State Public Health Officer of the same date, which generally directed all Californians to stay home, excepted from the stay-home directive “Essential Critical Infrastructure Workers” needed to maintain continuity of operations of certain designated “critical infrastructure sectors.”  The State’s operative list of “Essential Critical Infrastructure Workers,” as amended by the State Public Health Officer on April 28, 2020, includes:

  1. Workers supporting public and private childcare establishments, pre-K establishments, K-12 schools, colleges, and universities for the purposes of distance learning, provision of school meals, or care and supervision of minors to support essential workforce across all sectors; and
  2. Workers and instructors supporting academies and training facilities and courses for the purpose of graduating students and cadets that compromise the essential workforce for all identified critical sectors.

These designations generally limit community colleges to providing distance learning, but provide a basis to conduct in-person instruction for the essential workforce in critical sectors.

The essential critical infrastructure sectors, as identified in the April 28, 2020, designation include: (i) Health and Public Health Sector; (ii) Transportation and Logistics Sector; (iii) Communications and Information Technology Sector; (iv) Government Operations and Other Community-Based Essential Functions; (v) Critical Manufacturing Sector; and (vi) Industrial, Commercial, Residential and Sheltering Facilities and Services, among others.  In-person classes in these areas may be considered when remote instruction is not practical.

On April 28, 2020, the Governor announced a 4-stage “California Roadmap,” pursuant to which various industry sectors will gradually be permitted to reopen.  At the state level, however, the California Department of Public Health has yet to announce any change in the status of higher education as a sector pursuant to the California Roadmap. Thus, at the state level, the status of higher education remains as defined pursuant to Executive Order N-33-20 and the State Public Health Officer’s April 28, 2020 designation of Essential Critical Infrastructure Workers — i.e., limited to distance learning, except instruction that prepares students to work in designated critical infrastructure sectors, which the state does not prevent from being offered in-person.

On May 4, 2020, the Governor issued Executive Order N-60-20 and formally began the process of permitting employers to reopen operations. On May 7, 2020, the State Public Health Officer announced: “All local health jurisdictions in the state may begin gradual movement into Stage 2, as set forth in this Order, effective on May 8, 2020; however, a local health jurisdiction may implement or continue more restrictive public health measures if the jurisdiction’s Local Health Officer believes conditions in that jurisdiction warrant it.”  For this reason, resuming in-person classes for critical infrastructure sectors should be considered only when consistent with local health orders.

The Los Angeles County Public Health order, for example, originally identified schools and colleges as “essential” only for purposes of conducting distance education — possibly meaning that in-person classes could not be conducted at all — but that restriction has recently been replaced by a more general statement defining Educational Institutions (including public and private colleges and universities) as “essential” without reference to distance education. This has the apparent effect of permitting in-person college classes in Los Angeles County, to the extent authorized by the State with respect to designated critical infrastructure sectors.

In a memorandum to community college Chief Executive Officers and Chief Instructional Offices dated March 20, 2020, the State Chancellor’s Office provided guidance for hard to convert courses which included a recommendation that college leadership work directly and on an ongoing basis with their local Department of Health to determine the feasibility, required conditions and possible timelines for continuing in-person instruction in essential infrastructure sectors. The guidance memorandum noted that the Chancellor’s Office will be seeking additional statewide clarification from the Governor’s Office regarding community college programs that serve critical infrastructure sectors such as Healthcare and Public Health, Emergency Services and Food and Agriculture sectors and continuation of instruction where appropriate and necessary.

As also noted in the Chancellor’s Office’s July 6 memo, the Safe Campus Reopening Workgroup has issued its report dated June 25, 2020. The Workgroup engaged stakeholders and developed recommendations, organized around six key issues, for the Chancellor’s Office to consider in supporting districts and colleges as they plan for reopening of their campuses.  As stated in the report, it necessarily represents a “moment in time,” and the constantly changing circumstances of the COVID-19 emergency may affect the currency and/or practicality of the report’s recommendations.  The report additionally observes, based on information from the California Office of Emergency Services and California Department of Public Health, “it appears broad reopening for in-person college operations will not be permitted until a county is permitted to be in Stage 3,” while also noting, “some on-campus activities might qualify as Stage 2 activities.”

As California Community Colleges plan for re-opening their campuses, a necessary component will be determining which programs support Essential Critical Infrastructure Workforce such that in-person classes may be resumed in accordance with executive orders and state and local public health guidance with respect to COVID-19.  Community Colleges should confer with legal counsel on whether, and to what extent, in-person classes may be resumed.

This AALRR publication is intended for informational purposes only and should not be relied upon in reaching a conclusion in a particular area of law. Applicability of the legal principles discussed may differ substantially in individual situations. Receipt of this or any other AALRR publication does not create an attorney-client relationship. The Firm is not responsible for inadvertent errors that may occur in the publishing process. 

©2020 Atkinson, Andelson, Loya, Ruud & Romo

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