On April 27, 2020, Texas Governor Greg Abbott announced details of his plan to reopen Texas businesses in phases, so long as the COVID-19 outbreak can be sufficiently contained in the process. In conjunction with the release of the “Open Texas” strategic plan, Governor Abbott also issued three executive orders on April 27, 2020, each aimed at balancing measures to reopen sectors of the state while maintaining sufficient protections. Below are key provisions of the Open Texas strategic plan and the related executive orders. Please use the following links to access the full text of the Open Texas strategic plan and each of Governor Abbott’s executive orders.

“Open Texas” Strategic Plan

As a general comment, while the Open Texas strategic plan is long and detailed, aside from the categories of businesses that may open and the stated capacity limitations, most of the included business reopening practices are “recommended” not mandated.

The Open Texas strategic plan will operate in phases, such that if testing does not indicate increased spread of COVID-19 during this preliminary reopening effort, occupancy limits for reopened businesses will be raised from 25% to 50% in two weeks. To this end, the strategic plan adheres to the continued theme of keeping safe distances from others and taking preventative measures against infection regardless of what you are doing.

Perhaps most importantly as it relates to the current patchwork of city, county and other local ordinances, the Open Texas strategic plan supersedes any such conflicting orders.

Training and Supporting Employees

Employers should train employees regarding proper cleaning and disinfecting practices, preventative hygiene, and respiratory etiquette. All businesses should train employees and implement policies for frequent and diligent disinfecting procedures, which include all regularly touched surfaces, restrooms, and any items/products that customers touch. Employees should continue to maintain a six-foot distance from other employees and patrons alike. Where such social distancing is not possible, employers should ensure that face covering, hand hygiene and other measures are taken. Regardless, employers should also consider having all employees wear cloth face coverings. Employers should have hand sanitizer, soap and water, or similar disinfectant readily available to all employees and customers.

Signage regarding best hygiene practices is also encouraged. If providing meals to employees, these meals should be individually wrapped for each employee.

Screening Employees

Employers should screen all employees before they are permitted to come into the business. If an employee has been diagnosed with COVID-19 (or exhibits COVID-19 symptoms, but has not been tested), the employee should be sent home and not be permitted to return to work until all of the following conditions are met:

• the employee has been naturally fever-free for at least 72 hours;
• the employee’s respiratory symptoms have improved; and
• a minimum of seven days have passed since the symptoms first appeared.

While the order recommends that employers “screen” employees, it does not explain what such screening measures employers should implement.  At a minimum, employers should ask employees whether they are experiencing any symptoms of COVID-19 (e.g., fever, cough, shortness of breath, etc.). Some employers may also consider taking employee’s temperatures or even testing for COVID-19.  Because these screening measures constitute medical examinations and inquiries under the Americans with Disabilities Act, employers need to ensure the ADA is followed.

If an employee has COVID-19 symptoms and desires to return to work before meeting the above conditions, the employee should obtain a medical professional’s note clearing the employee to return based on an alternative diagnosis.

If an employee has come into contact with another individual with a confirmed case of COVID-19, the employee should not be allowed to return to work until they have self-quarantined for 14 days following the last date of exposure, unless that employee is a healthcare or critical infrastructure worker.

In addition to the above, employers should also be mindful of federal and state employment and workplace safety laws. For example, under OSHA, employers have a duty to provide a safe and healthful workplace that is free from serious recognized hazards, which would include COVID-19.

Retailer Guidelines for Serving Customers

Non-essential retailers, including shopping malls, are now permitted to reopen and operate up to 25% of their total listed occupancy. In reopening, retailers are encouraged to consider:

• dedicated hours or special delivery procedures for at-risk customers,
• contactless payment methods,
• regularly disinfecting highly-touched areas and items that customers come into contact with,
• providing hand sanitizer, soap or other disinfectants to employees and customers, and
• signage regarding proper preventative hygiene.

Restaurant Guidelines for Serving Customers

Restaurants may now open for dine-in service for up to 25% of the total listed occupancy of the restaurant. In doing so, restaurants should offer a hand sanitizing station at the entry of the restaurant. No tables may contain more than six patrons, and parties should remain six feet apart at all times, including while waiting to be seated. The following dining considerations should also be followed:

• silverware, flatware, glassware and other table-top items should not be left on unoccupied tables,
• condiments may be provided only upon request, and only in single-use portions,
• only disposable menus may be used, and menus should be discarded after each use, and
• if a buffet is offered, employees should serve the food to customers.

The use of contactless payment methods is encouraged. Valet parking is not permitted except for vehicles with disabled parking placards or plates.  Restaurants may consider having an employee open the door to avoid allowing patrons to touch door handles. Restaurant employees should additionally wash or sanitize their hands upon entering the restaurant and in between interactions with customers.

Additional Activities

Movie theaters are permitted to operate up to 25% capacity, but should ensure that movie-goers are only permitted to sit in every other row and maintain a two-seat minimum space between unrelated parties. Food service at movie theaters should follow guidelines similar to those applicable to restaurants. Museums and libraries may also operate at 25% capacity, but should close interactive or hands-on exhibits. Non-contact outdoor sports may resume, provided they include no more than four players. Golf courses, in particular, should take precautions to disinfect carts and driving range balls; and golfers from different households should practice social distancing by not riding together in a golf cart.

Executive Orders

Executive Order No. GA-18

Executive Order No. GA-18 implements the above-described Open Texas strategic plan, detailing which businesses may reopen and the manner in and extent to which they are permitted to do so.

Under this order, all persons are still required minimize to social gatherings and in-person contact with those not in the same household, except to provide or obtain previously defined “Essential Services” or newly defined “Reopened Services.” “Reopened Services” include, in addition to the in-store retail services, restaurants, and venues mentioned above, single-person offices, local county and municipal government operations, and religious services. The order states that people must still avoid bars, gyms, public swimming pools, bowling alleys, video arcades, massage establishments, tattoo studios, piercing studios, or cosmetology salons. People are also not allowed to visit nursing homes or long term facilities at this point.

As with previous executive orders, this order requires people and businesses to continue to follow minimum standard health protocols recommended by the DSHS, continue to social distance, work from home, if possible, and practice good hygiene. This executive order reiterates that drive-through, pickup, or delivery options are highly encouraged. The order also emphasizes the importance of these precautions for those 65 and older, adding that such persons should stay home and maintain an appropriate distance from any household member who has been outside the household in the past 14 days.

This order supersedes any local order that mandates closure of any businesses now permitted to reopen, that attempts to expand the types of businesses permitted to reopen, or that allows any gatherings prohibited by the state-wide order. In addition, the order explicitly states that while use of masks is highly encouraged, “no jurisdiction can impose a civil or criminal penalty for failure to wear a face covering.”

The order takes effect immediately and terminates on May 15, 2020.

Executive Order No. GA-19

Under Executive Order No. GA-19, all licensed health care professionals are allowed to resume normal business, provided they comply with any emergency rules promulgated by their respective licensing agencies dictating minimum standards for safe practice during the COVID-19 disaster. This order supersedes the Governor’s previous Executive Order No. GA-15, issued April 17, 2020, which required all licensed health care providers and facilities to postpone all procedures that were not medically necessary to protect a patient’s life or prevent serious adverse medical consequences.

Additionally, the order requires that hospitals reserve at least 15% of the facility’s capacity for treatment of COVID-19 patients.

This order takes effect on May 1, 2020 and will remain in effect until otherwise modified or rescinded.

Executive Order No. GA-20

Under Executive Order No. GA-20, any person flying to Texas from certain enumerated locations must self-quarantine for a minimum of 14 days. The affected departure locations include the States of California, Connecticut, New York, New Jersey, and Washington, as well as the following cities: Atlanta, Georgia; Chicago, Illinois; Detroit, Michigan; and Miami, Florida. This order supersedes and terminates Executive Order No. GA-12, which required a similar mandatory quarantine for travelers from the City of New Orleans or the State of Louisiana.

An exemption to the self-quarantine requirement is available to those traveling in connection with military service, emergency response, health response, or critical infrastructure functions.

This order takes effect on May 1, 2020 and will remain in effect until otherwise modified or rescinded.

Baker McKenzie Beyond COVID-19 Resource Center

Baker McKenzie has put together a global resource center for all key insights and upcoming webinars as a central repository to assist our clients understand, prepare and respond quickly to the significant legal and business challenges posed by COVID-19. Please use the following link to visit our Beyond COVID-19 Resource Center for additional resources. Baker McKenzie understands that these times are challenging for all our clients and we want to assure you we are here to assist.

See our new alert: The Reopening Playbook: What US Employers Should Be Thinking About Right Now.