Texas has joined the growing number of states that have begun to reopen businesses following weeks of closure due to the COVID-19 pandemic. Governor Greg Abbott rolled out a three-phase plan to reopen the economy in conjunction with a report entitled “Texas Helping Texans: The Governor’s Report to Open Texas.” Additionally, over the last few days, Governor Abbott issued a series of executive orders regarding phase two of the plan.

Executive Order GA-18

On April 27, 2020, the governor issued Executive Order GA-18, which permitted essential services to continue operations plus religious services conducted in places of worship. The executive order also authorized retailers, restaurants, movie theaters, shopping malls, museums and libraries, golf courses, single-person offices, and local government operations to reopen as of May 1, 2020. These businesses are, however, subject to a 25 percent occupancy restriction.

Executive Order GA-21

On May 5, 2020, Governor Abbott issued Executive Order GA-21 to expand the reopening of certain businesses and activities in Texas. The Texas Department of State Health Services (DSHS) stated that “[t]his announcement expands upon the businesses and activities included in the first phase of the plan to Open Texas while minimizing the spread of COVID-19.” Executive Order GA-21 authorized the immediate opening of the following businesses: wedding venues, services required to conduct weddings, and wedding reception services. Indoor weddings and receptions may not exceed 25 percent of the “total listed occupancy of the facility.”

Additionally, as of May 8, 2020, the following businesses may reopen:

• Cosmetology salons, hair salons, barber shops, nail salons/shops, and tanning salons (these businesses must ensure at least six feet of social distancing between operating workstations)

• Indoor and outdoor swimming pools (may not exceed 25 percent of the total occupancy)

• Local public swimming pools only if permitted by local government (presumably also subject to the 25 percent occupancy limitation)

Finally, on May 18, 2020, the following businesses may reopen:

• “Services provided by office workers in offices that operate at up to the greater of (i) five individuals, or (ii) 25 percent of the total office workforce,” provided social distancing is maintained

• Nonessential manufacturers (may not exceed 25 percent of the total occupancy and must have staggered workflows and breaks)

• Gyms and exercise facilities (may not exceed 25 percent of the total occupancy; restrooms may be opened, but locker rooms and showers must remain closed)

These businesses may operate at an increased capacity of up to 50 percent if located in a county where there have been five or fewer cases of COVID-19, assuming the county is in compliance with the requisite attestation required by DSHS.

Importantly, the occupancy limitations described above do not apply to those businesses defined as essential. Additionally, employees of service-oriented businesses do not count toward the occupancy limitation, except for in the cases of nonessential manufacturers and services provided by office workers. Thus, for example, restaurant employees would not be included in determining the occupancy limitation.

Health Protocols for Employees and Contractors

Regardless of the reopening date, all newly reopened businesses and services are subject to the recommended minimum standard health protocols outlined by DSHS. The DSHS recommendations include, but are not limited to, the following:

• “Train all employees on appropriate cleaning and disinfection, hand hygiene, and respiratory etiquette.”

• “Screen employees and contractors before coming into the business”:

  • “Send home any employee or contractor who has any of the following new or worsening signs or symptoms of possible COVID-19”:

    • Cough

    • Shortness of breath or difficulty breathing

    • Chills and/or repeated shaking with chills

    • Muscle pain

    • Headache

    • Sore throat

    • Loss of taste or smell

    • Diarrhea

    • Feeling feverish or having a temperature of 100.0 degrees Fahrenheit or higher

    • Known close contact with a person who has been confirmed as having COVID-19 by laboratory testing.

• “Do not allow employees or contractors with new or worsening signs or symptoms listed above to return to work until [compliance has been achieved with the following protocols”]:

  • If an employee or contractor has symptoms that could be COVID-19 and wants to return to work before completing the above-described self-isolation period, the individual must obtain a medical professional’s note clearing the individual for return based on an alternative diagnosis.

  • In the case of an employee or contractor who was diagnosed with COVID-19 or who has symptoms that could be COVID-19 and has not been evaluated by a medical professional or tested for COVID-19 but is assumed to have COVID-19, the individual may return to work when all three of the following criteria are met:

    • at least 3 days (72 hours) have passed since recovery (resolution of fever without the use of fever-reducing medications);

    • the individual has improvement in symptoms (e.g., cough and shortness of breath); and

    • at least 10 days have passed since symptoms first appeared.

• “Do not allow an employee or contractor with known close contact [with] a person who is lab-confirmed to have COVID-19 to return to work until the end of the 14-day self-quarantine period from the last date of exposure (with an exception granted for healthcare workers and critical infrastructure workers).”

• “Have employees and contractors wash or sanitize their hands upon entering the business.”

• “Have employees and contractors maintain at least six feet [of] separation from other individuals. If such distancing is not feasible, other measures such as face covering, hand hygiene, cough etiquette, cleanliness, and sanitation should be rigorously practiced.”

• “If an employer provides a meal for employees and/or contractors, employers are recommended to have the meal individually packaged for each individual.”

• “Consistent with the actions taken by many employers across the state, consider having all employees and contractors wear cloth face coverings (over the nose and mouth). If available, employees and contractors should consider wearing non-medical grade face masks.”

Health Protocols for Employers’ Facilities

• “If six feet of separation cannot be maintained between employees, contractors, and/or customers inside the facility, consider the use of engineering controls, such as dividers between individuals, to minimize the chances of transmission of COVID-19.”

• “Regularly and frequently 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, contractors, and customers.”

• “Place readily visible signage at the business to remind everyone of best hygiene practices.”

• “For employers with more than 10 employees and/or contractors present at one time, consider having an individual wholly or partially dedicated to ensuring the health protocols adopted by the employer are being successfully implemented and followed.”

In addition to the standards described above for all businesses, the minimum standard health protocols outlined by DSHS provide specific, additional guidance for particular industries and spheres of activity, including retail, restaurants, movie theaters, museums and libraries, and churches/places of worship.

Additional Considerations

Executive Order GA-21 encourages individuals to wear face coverings but does not require it. Additionally, the executive order prohibits any jurisdiction from imposing a civil or criminal penalty for not wearing a face covering.