Texas Expands Phase One Business Openings

Pillsbury Winthrop Shaw Pittman LLP

Only a week after introducing his plan to reopen the Texas economy, Governor Abbott announced two more waves of business reopenings to begin on May 8 and May 18.

TAKEAWAYS

  • Hair salons, barber shops, nail salons, tanning salons, and swimming pools may reopen on May 8, with gyms, nonessential manufacturing, and expanded office-based operations to follow on May 18.
  • Weddings and graduations may again be conducted but must follow strict guidance set forth by the State and the Texas Education Agency.
  • Accompanying the Governor’s order are two new sets of Open Texas Checklists, which provide industry-specific safety protocols for these expanded businesses ahead of reopenings.

On May 5, 2020, only a week after the unveiling of Texas’s reopening plan, Gov. Abbott issued Executive Order GA-21 (Order), which allows more Texas businesses to open their doors again in the next two weeks. The Governor concurrently issued revised Open Texas Checklists (Checklist) for already-opened businesses, as well as additional Checklists for the newly added businesses. Apart from the additions discussed below, the Order is identical to GA-18, the first reopening order issued on April 27, which the new Order expressly supersedes. More information about the April 27 order may be found in this Pillsbury Alert detailing the first wave of business reopenings.

The Order is set to expire on May 19, unless amended, rescinded or superseded.

May 8 Reopenings

Beginning on Friday, May 8, the following businesses may reopen for limited operations, subject to industry-specific safety protocols:

Cosmetic Services

Cosmetology salons, hair salons, barber shops, nail salons, tanning salons, and any other establishments where licensed cosmetologists or barbers practice may open their doors May 8 but must maintain at least six feet between work stations. Because these businesses bring people together in close proximity, the new Checklists set noticeably higher safety standards for hair salons, barber shops, nail salons, and tanning salons, as well as their customers. Although these guidelines are not mandatory, strict compliance is strongly recommended.

Checklists for each of the above-listed industries do not vary significantly and instead share common safety protocols such as:

  • Offer less complex and time-consuming services;
  • Schedule appointments to limit the amount of people present and only schedule the number of clients that will allow for sufficient social distancing;
  • Have walk-in clients wait outside or in their cars;
  • Remove unnecessary items, such as magazines, from waiting areas; and
  • Prohibit extra people at the appointment, such as children.

Each Checklist also recommends that, for clients, businesses:

  • Post signs notifying clients they must reschedule if symptomatic or if they have been exposed to someone who is symptomatic;
  • Refuse service if there is reason to believe the client is sick;
  • Require clients wash their hands upon entering the premises and before being serviced;
  • Ensure clients are not touching retail supplies or interacting with other customers; and
  • Provide face coverings or request clients wear face coverings.

In addition to screening their employees before coming to work, the Checklists encourage businesses to require employees wear face coverings and gloves at all times, use disposable supplies, frequently sanitize surfaces and supplies using disinfectants from an EPA-approved list, and require employees to sign a statement acknowledging they understand and will adhere to these COVID-19 processes and procedures.

Swimming Pools

Just in time for hot summers typical in Texas, swimming pools may reopen May 8. Indoor swimming pools may operate at up to 25 percent of their total listed occupancy while outdoor pools may operate at up to 25 percent of normal operating limits as determined by the pool operator. Local public pools may operate at their local government’s discretion.

Restaurants

The Order provided an important clarification for restaurants: occupancy limits do not apply to outdoor seating areas.

Wedding Venues and Services

Gov. Abbott has said “I do” to Texas weddings in his latest order, allowing wedding venues, reception venues, and services required for weddings to go back into business. For indoor weddings, other than those held at a church or place of worship, the venue may operate at up to 25 percent of the total listed occupancy. No occupancy limit applies to outdoor receptions or outdoor areas of a reception.

Checklists are available for wedding venues, reception venues, and attendees of each. This wedding-specific guidance includes recommendations that the venue keep at least two empty seats between parties, leave every other row empty, allow at-risk populations to participate remotely or designate an area for at-risk populations, and disinfect seats and other items that come in contact with attendees.

Graduation Ceremonies

While schools will remain closed for the rest of the academic year, they may conduct graduation ceremonies consistent with guidance promulgated by the Texas Education Agency. Permissible graduation ceremonies include:

  • Completely virtual ceremonies;
  • Hybrid ceremonies where students individually collect their diplomas and have a short video taken that will be edited together with other classmates’ videos to create a virtual ceremony;
  • Vehicle ceremonies; and
  • Outdoor in-person ceremonies, which, between May 15 and May 31, are limited to rural counties that have attested they have five or fewer confirmed cases of COVID-19. After June 1, a graduation ceremony may take place in any county.

All graduation ceremonies, with the exception of entirely virtual ones, require students and attendees be screened for COVID-19 symptoms and implement social distancing and other safety measures.

May 18 Reopenings

Gov. Abbott has also outlined a third wave of businesses permitted to resume operations on Monday, May 18. Guidance for these businesses has been released already in preparation for reopening.

Gyms

Starting May 18, gyms and exercise facilities and classes may operate at up to 25 percent of their total listed occupancy; although, locker rooms and shower facilities must remain closed. The Checklists recommend these facilities screen all employees before work, space equipment six feet apart, provide equipment cleaning products throughout the gym, disinfect all items that come into contact with customers, and designate an employee to ensure these protocols are implemented and followed. Patrons are similarly advised to maintain social distancing, disinfect equipment after use, avoid older patrons, and wear gloves while exercising.

Expanded Office-Based Services

Under the Governor’s April 27 order, only services provided by one person in an office were allowed to reopen. But on May 18, offices may staff up to five individuals, or 25 percent of the total office, whichever is greater. The Checklist for office-based employers recommends employers screen employees before coming to the office, require employees wash their hands upon entering the office, regularly disinfect frequently touched surfaces, make hand sanitizer and other disinfectant readily available, and limit the use of elevators to four individuals at a time. Employers should consider appointing an individual at the office responsible for implementing and monitoring these safety protocols.

Nonessential Manufacturing

All nonessential manufacturing will be able to resume at 25 percent of the facility’s total listed occupancy. Like office-based services, this total listed occupancy limit includes staff members. The manufacturers’ Checklist similarly recommends that employers screen employees before their shift, have employees wash their hands upon arrival, maintain social distancing, and frequently disinfect surfaces.

Low COVID-19 Counties

In counties that have certified to the Texas Department of State Health Services that they have fewer than five confirmed cases of COVID-19, restaurants, movie theaters, shopping malls, museums and libraries, wedding venues and reception services, swimming pools, offices with more than five individuals, manufacturing services, and gyms may operate at up to 50 percent capacity, rather than 25 percent. The Order does not include cosmetology services in this exemption. As of May 6, 2020, 75 counties are operating at 50 percent capacity—or about one-third of Texas counties.

Preemption

Like its predecessor, the Order supersedes any conflicting order issued by local official in response to the COVID-19 emergency. This preemption has already led to conflict between State and local officials, as some counties have attempted to reopen businesses beyond the scope of the Governor’s orders, while others, such as Harris County, continue to require face coverings in spite of the Governor’s prohibition on attaching any penalty to this requirement.

Conclusion

Texas is rapidly moving forward with reopenings across the state. Cosmetology and leisure services lead the way, and what appears to be broader accommodations to rural counties with few cases are worth noting. Since Texas’s state-directed reopening started only on May 1, 2020, the effects on public health remain to be seen. Local restrictions, particularly in the major metropolitan areas, generally remain in place, and may continue to be modified or extended as public health conditions are affected by reopening. Stay tuned and stay safe out there.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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