On March 13, 2020, Governor Greg Abbott declared a State of Disaster in Texas due to COVID-19. Subsequently, on March 19. 2020, Governor Abbott issued a Public Health Disaster Declaration, and an Executive Order, which, among other things, prohibited congregating in groups consisting of more than ten people, and closed all Texas restaurant dining rooms [1] bars, gyms and schools, effective March 20, 2020.  Governor Abbott has refrained from issuing a statewide shelter-in-place order, and has instead left the decision up to city and county leaders.  In the days that followed, and throughout this week, 16 counties, and major cities in Texas, including Austin, Dallas, El Paso, Houston, and San Antonio have issued “Stay at Home” orders, which share many similarities, with a few distinctions.  The following are summaries of the key aspects of the orders that may impact the workplace, followed by a glossary defining some of the key terms in the orders.

Austin’s “Stay Home – Work Safe” Order

On March 24, 2020, the City of Austin announced a “Stay Home – Work Safe” Order similar to a shelter in place or stay at home orders issued in other cities across U.S. and in Texas. The new Stay Home – Work Safe Order took effect at 11:59 P.M. on March 24, 2020 and will continue through April 13, 2020. The Austin Order, which applies to the City of Austin and Travis County, provides that all business or operations within the City of Austin must “cease all activities at facilities located within the City,” except for Essential Activities, Critical Infrastructure, Essential Government Functions, Essential Businesses.  Other businesses may engage in “Minimum Basic Operations,” which includes activities required to maintain the value of inventory, ensure security, and process payroll and employee benefits.  The Austin Order also provides that employees who are able may work remotely from within their residences.   All travel, including by foot, bicycle, or car, is prohibited, unless the travel is for the purposes of Essential Travel, Essential Activities, Essential Business (all of which are defined below), government service, or critical infrastructure. Anyone who violates the Austin Order will face penalties, including a fine of up to $1,000 or up to 180 days in jail

Dallas’ Stay Home Stay Safe Order

On March 24, 2020, Mayor Eric Johnson issued emergency regulations that apply a previously-issued Dallas County Stay Home Stay Safe Order to five counties that comprise the City of Dallas: Collin, Dallas, Denton, Kaufman, and Rockwall Counties.  The extension of the Dallas Order is intended to ensure that enforcement efforts will help provide consistency across neighboring jurisdictions, ensure that enforcement efforts across the city are uniform, and will clarify any confusion among Dallas residents.  Originally issued on March 22, 2020, the Dallas County Order provides some of the strictest requirements of all the Texas locality city or county COVID-19 shelter-in-place orders, requiring staying at home, except for Essential Activities, work at Essential Businesses and government services, or to perform essential infrastructure construction. Anyone who violates the regulations faces a fine from between $50 and $2,000.  While the original Dallas County Order was to be in effect until April 3, 2020, the new regulations apply the Dallas County Order to the expanded localities from 11:59 P.M. March 24, 2020 until April 29, 2020.

El Paso’s Stay-At-Home Order

On March 24, 2020, El Paso County issued a Stay-At-Home Order. Unlike many other similar orders, however, the El Paso Order does not have a set sunset date, and will remain in place from 11:59 P.M. on March 24, 2020 until further notice.  Like the Austin and Dallas Orders, anyone who violates the El Paso Order will face penalties, including a fine of up to $1,000 or up to 180 days in jail.  In addition to calling El Paso 311, the El Paso government has set up an email address where non-compliance can be reported. This is the second COVID-19-related order issued by El Paso County – on March 19, 2020, the County had issued an Emergency Order Extending a Disaster Declaration Due To a Public Health Emergency.

Houston’s Stay Home, Work Safe Order

On March 24, 2020, Houston and Harris County joined other Texas cities in announcing “Stay Home, Work Safe Order.”  A number of other orders had previously been issued there, including Harris County’s “Declaration of Local Disaster for Public Health Emergency,” effectively declaring a state of emergency due to COVID-19 in Harris County.  The Houston Order, which went into effect midnight March 24, 2020, continues through April 3, 2020.  The “Stay Home, Work Safe Orders outlined businesses that are deemed non-essential, and are to be closed to the public, including, but not limited to, playgrounds, gyms, fitness centers, swimming pools, hair and nail salons, spas, tattoo parlors, concert halls, arenas, stadiums, live performance theaters, movie theaters, and indoor malls and shopping centers.

San Antonio’s Stay Home, Work Safe Order

On March 23, 2020, the City and County of San Antonio announced a joint “Stay Home, Work Safe” Order.  In addition to announcing its stay-at-home and business closure policies, similar to the orders outlined above, the San Antonio Order also declares a state of disaster and public health emergency for the City.  One distinction from the other city orders is the specific enumeration of Information Technology and operations related to National Cyber Security as “Exempted Businesses.” The San Antonio Order has been in effect from 11:59 P.M. March 24, 2020 until at least 11:59 P.M. on April 9, 2020.

 

COMMON TERMS FOR “STAY HOME” ORDERS

Essential Activities:

 Pursuant to the Stay Home Orders outlined above, in effect in Austin, Dallas, El Paso, Houston and San Antonio, all individuals are prohibited from leaving their residences, unless they are engaged in the following “Essential Activities”:

  1. Tasks essential to health and safety, including the health and safety of family or household members;
  2. Activities to obtain necessary services or supplies, including food, pet supplies, and other household items, including for family or household members, or to deliver those services or supplies to others;
  3. Engaging in outdoor activities, such as walking, hiking or running that complies with six-feet social distancing requirements;
  4. Work performed to provide essential products or services to Essential Businesses (defined below);
  5. To care for a family member or pet in another household (Austin and Dallas only); and
  6. To seek safe residence when there is domestic violence in the home (El Paso only).

Essential or Exempt Businesses:

Businesses that are deemed “Essential” or “Exempt” from the above Stay Home Orders include:

  • Healthcare operations;
  • Stores that sell groceries and certain other essential supplies;
  • Food cultivation;
  • Social services and charitable organizations;
  • News media;
  • Gas stations and businesses needed for transportation;
  • Financial institutions;
  • Hardware and supply stores;
  • Critical trades, including plumbing, electricians, and exterminators;
  • Mail, shipping and delivery services;
  • Laundry services;
  • Restaurants for consumption off-premises;
  • Supplies to work from home;
  • Supplies for Essential Businesses, Critical Infrastructure, and Essential Government Functions;
  • Food delivery services;
  • Transportation;
  • Home-based care and services;
  • Residential facilities and shelters;
  • Professional services (such as legal or accounting services necessary to comply with legally required activities;
  • Information technology services;
  • Moving supply services;
  • Hotels and motels;
  • Funeral services;
  • Educational institutions;
  • Childcare facilities; and
  • Operations necessary to the operation of infrastructure sectors identified by the National Cybersecurity and Infrastructure Agency (San Antonio only).

Essential Travel:

“Essential Travel,” which includes travel for the purposes of engaging in Essential Activities and to engage in activities related to Essential Businesses, is generally permitted. Note that the El Paso Order enumerates a broad form of this permitted Essential Travel, listing “[t]ravel engaged in interstate commerce and otherwise subject to the provisions of the Commerce Clause of the United States Constitution” as an enumerated purpose for which residents of El Paso may leave their homes.

Social Distancing Requirements:

The Stay Home Orders in effect for Austin, Dallas, El Paso, Houston and San Antonio require individuals to maintain at least six feet of distance from other individuals, to frequently wash their hands with soap and water for at least 20 seconds, to cover coughs and sneezes, to clean frequently touched surfaces regularly, and not to shake hands.

WHAT TEXAS EMPLOYERS SHOULD DO NOW

Texas employers should review their current operations, in light of any relevant city or county orders, and determine whether they can continue to operate fully as an “Exempt” or “Essential” operation or business, or if certain adjustments to the scope of their operations must be made. In addition, employers should review their relevant paid leave policies, benefit plans and expense reimbursement policies and procedures to determine how they will apply under these circumstances.  Employers should also continue to monitor federal, state, and local legislative, regulatory, and executive branch developments, as well as Epstein Becker & Green’s Coronavirus Resource Center.

In addition, Epstein Becker Green is continually monitoring how the COVID-19 pandemic will impact Texas employers and will provide further updates, as necessary.  In the meantime, should you have any questions or need further guidance on this or any COVID-19 issue during this time, please contact Greta Ravitsky or Anastasia Regne.

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[1] While the Executive Order closed all Texas restaurant dining rooms, drive-through, pickup, or delivery options are allowed and highly encouraged during the duration of this Order.