Updated CISA Memorandum supports limited vehicle sales in connection with leasing activities to essential critical infrastructure workers

COVID-19 TASK FORCE ALERT

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On March 19, 2020, Governor Newsom issued Executive Order N-33-20 (“Executive Order”) directing all residents to heed current State public health directives. The order directed all individuals to stay home except as needed to maintain continuity of operations of essential critical infrastructure sectors.

The Executive Order cited the March 19 Memorandum on Identification of Essential Critical Infrastructure Workers During COVID-19 Response issued by the Department of Homeland Security’s Cyber & Infrastructure Security Agency (“CISA”). The original order did not list salespeople as essential critical infrastructure workers. However, on March 28, CISA issued an updated Advisory Memorandum on Identification of Essential Critical Infrastructure Workers During COVID-19 Response (“Amended Memorandum”). This Amended Memorandum now provides that “workers critical to rental and leasing of vehicles . . . that facilitate continuity of operations for essential workforces and other essential travel” are essential critical infrastructure workers within the “Transportation and Logistics” sector.

Scali Rasmussen’s COVID-19 Task Force analyzed this change for the CNCDA and produced a memorandum on March 30. The CNCDA issued an ALERT containing this new guidance today. In short, we concluded that CISA’s explicit designation of vehicle leasing and rental should inform California’s interpretation and implementation of the Executive Order, as the Executive Order referred and relied upon CISA’s original designations. Further, CISA’s guidance can be read to also support limited dealer lease staffing whereby sales of vehicles may also be made to essential critical infrastructure sector workers and to others with essential travel needs.

In order to operationalize the Governor’s Executive Order as interpreted through the Amended Memorandum, we recommend that California vehicle dealers offer limited retail of vehicles as follows:

  • Limit in-store sales and leases to customers working in an Essential Critical Infrastructure Sector or those needing transportation for other essential travel.
    • Offer in-store sales by appointment only
    • Follow specific health and safety guidelines to prevent transmission of COVID-19
    • Require customers to sign a disclosure of their involvement with an essential critical infrastructure sector or other essential travel need and a waiver acknowledging the risk of in-store retail at this time
    • Prohibit test drives
  • Offer offsite delivery of vehicles to all other customers
    • Follow specific offsite sales guidelines to ensure compliance with DMV licensing requirements
    • Follow specific health and safety guidelines to prevent transmission of COVID-19
    • Follow additional steps to comply with Red Flags and CCPA requirements
    • Require customers to sign a waiver acknowledging the risk of offsite delivery
    • Prohibit test drives

Scali Rasmussen has developed an Executive Order Temporary Sales Guide that includes a policy and procedure manual, door sign, and customer disclosures and waivers, to operationalize this advice. Any automotive dealer interested in this guide should contact Scali Rasmussen for more information.