On March 2, 2021, Texas Governor Greg Abbott issued Executive Order No. 34 (GA-34), rescinding most of his earlier executive orders related to COVID-19, including the statewide mask mandate and business occupancy restrictions. GA-34 becomes effective at 12:01 a.m. on March 10, 2021.

Currently, most businesses in Texas are permitted to operate at 75 percent capacity unless their region is experiencing a sustained increase in COVID-19 hospitalizations. In a statement released along with GA-34, Governor Abbott said that starting March 10, 2021, “all businesses of any type may open to 100% capacity.” According to press reports, a spokesperson later confirmed that this includes sporting events, concerts, and similar events. Moreover, masks will no longer be required in public for the first time since last summer. With the issuance of GA-34, Texas became the most populated state to not have a mask mandate in place.

Governor Abbott made clear that businesses are free to limit their capacity and are also free to impose safety protocols on employees and customers, including a mask mandate. Additionally, if the hospitalization of COVID-19 patients exceeds 15 percent of total hospital bed capacity in any of the state’s 22 hospital regions, GA-34 authorizes county judges to implement mitigation strategies, albeit with some exceptions.

First, while appropriate mitigation strategies may include limiting business occupancy, such occupancy limitations may not require businesses to “operate at less than 50 percent of total occupancy.” No occupancy limitations may be “imposed for religious services (including those conducted in churches, congregations, and houses of worship), public and private schools and institutions of higher education, and child-care services.” In addition, those who violate mitigation measures cannot be punished through “confinement in jail.” Finally, “no jurisdiction may impose a penalty of any kind” on someone who refuses to wear a face covering or on businesses that do not require employees or customers to wear face coverings. GA-34 also provides that individuals who refuse to wear masks when entering a business with a mask mandate may be held accountable for trespassing and/or be removed from the property at the business establishment’s or property owner’s request.

Employers may want to prepare for this shift in the law, as employees and customers may feel emboldened to refuse to wear masks. Moreover, despite GA-34, it is important to remember that the federal Occupational Safety and Health Act’s General Duty Clause requires employers to furnish to each worker “employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm.” In this regard, the Occupational Safety and Health Administration (OSHA) issued worker safety guidance on January 29, 2021. As part of the guidance, OSHA recommended employer implementation of COVID-19 prevention programs, which include the use of face coverings.