Today’s new normal is that nothing will be normal.  It seems that each day we are greeted with yet another federal, state, or local order restricting activity.  These have ranged from travel advisories, to local bar and restaurant closures, to the statewide closing of all non-essential businesses.

What all of these shut-down orders have in common, however, is that there is little or no lead time between the issuance of the order and when it goes into effect. For example, just last night California Governor Gavin Newsom issued an order shutting down all non-essential business in that state and ordering everyone to stay home, effective immediately.  Similarly, earlier this week, Maryland’s Governor Larry Hogan ordered the closure of all bars and restaurants, effective at 5 PM on the same day the order was issued.

So, are the aviation and aerospace industries essential or non-essential?  Is aviation a part of  “critical infrastructure,” or is it just another business like restaurants or movie theaters?  The events in California provide a good framework for how to answer these questions.

The California shut-down order requires “all individuals living in the State of California to stay home or at their place of residence . . . .”  The order also notes, however, that despite these restrictions, “the supply chain must continue, and Californians must have access to such necessities as food, prescriptions, and health care.”  As a result, the order contains a carve-out for all employees working in the:

16 critical infrastructure sectors whose assets, systems, and networks, whether physical or virtual, are considered so vital to the United States that their incapacitation or destruction would have a debilitating effect on security, economic security, public health or safety, or any combination thereof.

The Department of Homeland Security’s Cybersecurity and Infrastructure Security Agency (CISA) has included transportation as one of the 16 industry sectors that the Federal Government wants to keep working during the COVID-19 outbreak.  The agency’s definition of the aviation component of the transportation sector includes:

aircraft, air traffic control systems, and about 19,700 airports, heliports, and landing strips. Approximately 500 provide commercial aviation services at civil and joint-use military airports, heliports, and sea plane bases.  In addition, the aviation mode includes commercial and recreational aircraft (manned and unmanned) and a wide-variety of support services, such as aircraft repair stations, fueling facilities, navigation aids, and flight schools.

CISA also includes guidance to help identify what types of workers and work should be allowed to continue during a shutdown.  It states that the critical aviation sector includes:

  • Air transportation employees, including air traffic controllers, ramp personnel, aviation security, and aviation management.
  • Workers who support the maintenance and operation of cargo by air transportation, including flight crews, maintenance, airport operations, and other on- and off- airport facilities workers.

Obviously, maintenance and operation of aircraft can only be accomplished if the necessary parts and equipment are available.  Accordingly, the guidance also includes:

  • Workers necessary for the manufacturing of materials and products needed for medical supply chains, transportation, energy, communications, food and agriculture, chemical manufacturing, nuclear facilities, the operation of dams, water and wastewater treatment, emergency services, and the defense industrial base.

As a result, aerospace equipment and parts suppliers also fit under this definition.  Of course, not every employee working for companies in the aerospace sector is critical to the operation of the system, but as a starting point, aviation makes the first cut of businesses that should remain open.

While some aspects of aviation have been restricted, it is clear that air transportation has a vital role to play in weathering both the medical and the economic crisis posed by COVID-19.  Over 140,000 tons of cargo are transported by air each day.  Air cargo carriers transport over $6 trillion worth of goods each year, and air cargo accounts for approximately 35% of world trade by value.  Aviation plays a key role in industry supply chains and is vitally important for the quick distribution of vaccines and other critical medical supplies around the world.

No doubt, the number of shut-downs will continue to grow over the coming weeks.  Since, in all likelihood, they will come with little or no warning, everyone needs to consider what parts of their operations may, and even must, continue to operate throughout the crisis.