On Monday, April 27, 2020, Governor Gregory Abbott announced Phase One of his much anticipated plan to reopen Texas, while minimizing the spread of COVID-19.  Governor Abbott accompanied his announcement by issuing Texas Helping Texans: The Governor’s Report to Open Texas (“Report”), and Executive Order No. GA-18 (“EO GA-18” or “Order”), pursuant to which all retail stores, restaurants[1], movie theaters, malls, museums and libraries are allowed to reopen on Friday, May 1, 2020, with a 25% occupancy limitation.  Within shopping malls and museums, all interactive areas must remain closed, as well as food-court dining and play areas.  EO GA-18 allows for increased occupancy limits of up to 50% in rural areas and counties with five or fewer confirmed cases of COVID-19, as verified by the Texas Department of State Health Services (“DSHS”).

EO GA-18 also provides that social distancing must continue to be maintained, and the Report includes special guidance for individuals over the age of 65, encouraging them to continue to stay home, if possible.  As previously outlined in Executive Order No. GA-15, as of April 22, 2020, medical offices may perform elective surgeries that meet certain requirements, and dental offices are permitted to perform medically necessary procedures.   All Texas schools must remain closed for the remainder of the academic year.  Public swimming pools, bars, gyms, salons, interactive amusement venues, including bowling alleys and video arcades, and tattoo and piercing studios are to remain closed through Phase One, which begins on May 1, 2020, and will continue through May 18, 2020.  Lastly, any person entering the State of Texas as their final destination through an airport, from the states of California, Connecticut, New York, New Jersey, Washington, and the cities of Atlanta, Chicago, Detroit or Miami, must self-quarantine for a period of 14 days from the time of entry into Texas or the duration of their stay in Texas, whichever is shorter.  This Order to self-quarantine does not apply to people traveling in connection with military service, emergency response, health response, or critical-infrastructure functions, as may be determined by the Texas Division of Emergency Management.

The Report, and these latest executive orders, issued this week, were informed by the Governor’s Strike Force to Open Texas, which consists of Lieutenant Governor Dan Patrick, Speaker of the House Dennis Bonnen, Attorney General Ken Paxton, and Texas Comptroller Glenn Hegar.  The Strike Force also includes a team of health officials and specialists, and a number of Texas executives and entrepreneurs.

While this first phase of the initiative to reopen Texas may be welcome news for some businesses, many businesses, including movie theaters and restaurants have expressed hesitation and unwillingness to reopen until certain procedures, equipment and necessary training are put into place to ensure the safety and well-being of their employees and patrons.  Other issues cited with this reopening timeline include an absence of specific government health guidelines, lack of staff willing to report to work, and the financial burden of operating at 25% capacity, which may result in revenues well below the cost of doing business.

Just as businesses are weighing the pros and cons of reopening as early as this Friday, so are many Texas workers weighing the opportunity of earning a paycheck and going back to work against the risk of exposure to COVID-19 and the potential forfeiture of unemployment benefits as a result of refusing to return to work.  Employees who refuse to return to work, not due to an underlying health condition or being 65 or older, may be deemed ineligible to continue receiving unemployment benefits.   The Texas Workforce Commission (“TWC”) provides that in order to qualify for unemployment benefits, workers must be “willing and able to work all the days and hours required for the type of work you are seeking.”  The TWC also generally provides that “if the business is legally open, the employee is an essential worker for the business, the workplace meets [Occupational Safety and Health Administration (“OSHA”)] safety guidelines, the employer follows CDC-recommended pandemic guidelines, and the employee is not under any local orders to stay at home, the employer would be able to replace an absent worker with someone else who is available and willing to work.”  Workers may, however, be eligible to collect partial unemployment, as long as their work involves reduced hours, equivalent to 25% of their unemployment benefits.  A day after Governor Abbott announced Phase One of the plan to reopen Texas, TWC said that it is developing parameters for what might allow Texans to continue qualifying for unemployment insurance if they refuse to return to work at a business reopened by EO GA-18, because of fear of contracting or spreading COVID-19.  While reinforcing that its determinations of eligibility for unemployment insurance benefits are made on a case-by-case basis, the TWC stated that it is working to develop clarity on what might constitute good cause for not returning to work, and “may need to review” situations where workers are not comfortable returning to reopened businesses in areas where COVID-19 cases continue to be a factor.

[1] Restaurants with alcohol sales making up less than 51% of their gross receipts may provide dine-in services at up to 25% of their total listed occupancy. Valet services are prohibited except for disabled patrons