Open Texas Update (Phase 1) and Summary of the Governor’s Report to Open Texas

On April 27, 2020 Governor Abbott issued his Executive Order GA-18 relating to the expanded reopening of services as part of the safe, strategic plan to Open Texas in response to the COVID- 19 disaster. Under GA-18 and the accompanying expansive guidelines in The Governor’s Report to Open Texas, the Texas Stay at Home Order is set to expire at 11:59 p.m. on April 30, 2020. Notably, and to provide uniformity given all the varying local differences between scope of ongoing stay-at-home-orders, GA-18 supersedes any conflicting order issued by local officials in response to the COVID-19 disaster, but only to the extent that such a local order restricts essential services or reopened services allowed by this executive order, allows gatherings prohibited by this executive order, or expands the list of essential services or the list or scope of reopened services as set forth in this executive order.

In light of GA-18, starting at 12:01a.m. on Friday, May 1 and continuing until May 15, Phase 1 of the plan to Open Texas takes effect. In order to help our Texas clients and contacts better understand the changes outlined in GA-18 and the Report, the McCathern Coronavirus Legal Task Force has prepared the following summary of which businesses can open with or without limitations, what those limitations are, which businesses are to remain closed, and the Texas Department of Health and Human Services’ (Texas HHS) recommended protocols for operating a Texas business during the continuing COVID-19 threat.

Businesses Able to Operate without Limitations

In addition to the “Essential services” listed by the U.S. Department of Homeland Security (DHS) in its Guidance on the Essential Critical Infrastructure Workforce, Version 3.0 or any subsequent version, GA-18 also includes religious services conducted in churches, congregations, and houses of worship. However, religious services should be conducted in accordance with the joint guidance issued and updated by Attorney General Ken Paxton and Governor Abbott.

Other essential services may be added to this list with the approval of the Texas Division of Emergency Management (TDEM), which can be tracked on the TDEM website at this page.

Businesses Able to Operate with Limitations

GA-18 allows for “Reopened services” to resume business operations on May 1, 2020 at their discretion. In addition to ongoing “retail to go” and restaurant delivery/drive-thru/take-out, the following businesses may operate at up to 25% of the total listed occupancy of the establishment:

In-store retail services
Dine-in restaurant services (that have less than 51 percent of their gross receipts from the sale of alcoholic beverages so long as they do not offer valet services to vehicles that do not have a placard or plates for disabled parking)
Movie Theaters (25% of total listed occupancy for any individual theater for any screening)
Shopping Malls (25% of total listed occupancy for the mall and so long as food court dining areas, play areas, and interactive displays remain closed)
Museums and Libraries (so long as interactive functions or exhibits, including child play areas, remain closed)
Sole Proprietors (that work alone in an office)
Golf Courses
Local Government Operations (relating to permitting, recordation, and document-filing services, as determined by the local government)

For Texas counties with five or fewer cases of COVID-19, those in-store retail services, dine-in restaurant services, movie theaters, shopping malls, and museums and libraries, as otherwise defined and limited above, may operate at up to 50 percent (as opposed to 25 percent) of the total listed occupancy.

Businesses That Shall Remain Closed

In-person classroom attendance by students at all schools (public and private) for remainder of 2019-2020 school year
Bars
Gyms
Public Swimming Pools
Interactive Amusement Venues (such as bowling alleys and video arcades)
Massage Establishments
Tattoo Studios
Piercing Studios
Cosmetology Salons

Notably, GA-18 does not prohibit people from accessing essential or reopened services or engaging in essential daily activities, such as going to the grocery store or gas station, providing or obtaining other essential or reopened services, visiting parks, hunting or fishing, or engaging in physical activity like jogging, bicycling, or other outdoor sports, so long as the necessary precautions are maintained to reduce the transmission of COVID-19 and to minimize in-person contact with people who are not in the same household.

Texas HHS’ Recommended Protocol for ALL Employers

Train all employees on appropriate cleaning and disinfection, hand hygiene, and respiratory etiquette.
Screen employees before coming into the business for signs of COVID-19 such as coughing, shortness of breath or difficulty breathing, chills, repeated shaking with chills, muscle pain, headache, sore throat, loss of taste or smell, diarrhea, running a fever of 100 degrees or more, known to have had close contact with someone confirmed to have COVID-19.
Send home any employee with any of the above-listed symptoms and do not allow them to return until all three of the following criteria are met:
- At least 3 days have passed since recovery (resolution of fever without the use of fever-reducing medications)
- The individual has improvement in respiratory symptoms
- At least seven days have passed since symptoms first appeared
If the employee has symptoms that could be COVID-19 and wants to return to work before completing the above self-isolation period, the individual must obtain a medical professional’s note clearing the individual to return based on an alternate diagnosis.
Do not allow an employee with known close contact to a person that has been diagnosed with COVID-19 to return to work until the end of the 14-day self-quarantine period from the last date of exposure (exception granted for healthcare workers and the “essential workers” listed herein above).
Have employees maintain at least 6 feet separation from other individuals. If this is not feasible, other measures such as face covering, hand hygiene, cough etiquette, cleanliness and sanitation should be rigorously practiced.
If employer provides meals for employees, the meals should be individually packaged for each employee.
All employees should wear cloth face coverings over their nose and mouth. If available, employees should consider wearing non-medical grade face masks.

Texas HHS’ Recommended Protocol for Business Facilities

In addition to the above recommendations for all Employers, the following protocols are recommended for all business facilities:

Regularly clean and disinfect any regularly touched surfaces, such as doorknobs, tables, chairs and restrooms.
Disinfect any items that come into contact with customers.
Make hand sanitizer, disinfecting wipes, soap and water or similar disinfectant readily available to employees and customers.
Place signage at the business to remind everyone of best hygiene practices.

Texas HHS’ Recommended Protocol for Restaurant Operations

In addition to the above recommendations, the following protocols are recommended for all restaurant operations:

Parties maintain at least 6 feet distance apart from other parties at all times.
Make hand sanitizing station available upon entry to restaurant.
No tables of more than 6 people.
Do not leave condiments, silverware, flatware, glassware or other table top items on unoccupied tables.
Provide condiments upon request and in single-use portions.
Use disposable menus and dispose of them after a single use.
If buffet is offered, restaurant employees serve the food to customers.
Minimize contact when paying for services.
Have employees manage and control access to the restaurant, including opening doors to prevent patrons from touching door handles.
Regularly clean restrooms and document the cleanings.
Disinfect any items that come into contact with customers.
Clean and disinfect the area used for dining after each group of customers depart, including the disinfecting of tables, chairs, stalls, and counter tops.
Clean and sanitize restaurant daily.

For further information, the Texas Restaurant Association (TRA) has additional resources and guidance in its “Texas Restaurant Promise” materials, which can be accessed on their site here.

Texas HHS’ Recommended Protocol for Retailers

In addition to the above recommendations for all Employers regarding their Employees and Business Facilities, the following protocols are recommended for retailers:

Retailers should consider dedicating a certain period of time each day for only at-risk customers (those who are 65 or older) or deliver purchased goods to vehicles to reduce the need for at-risk customers to enter the store.
If practical, monitor what items customers touch to clean or disinfect when the customer leaves the retail establishment.
Contactless payment is encouraged. Where not available, contact should be minimized.

Additional Resources

In Conclusion

As Phase 1 of GA-18 only lasts thru May 15, 2020, McCathern will continue to track all legislature and governmental actions related to the Covid-19 outbreak so that we can best assist our business partners through this challenging and dynamic situation. The McCathern Coronavirus Task Force will continue to provide appropriate updates, but please don’t hesitate to contact us should you have any further questions about this or any other legal matter on which our attorneys may be able to provide assistance.