Texas Local Governments Impose New Face Covering and Health and Safety Plan Requirements Upon Employers, As COVID-19 Cases Surge

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For the last two weeks, Texas is continuing to break records for daily coronavirus cases and hospitalizations.  According to the Texas Department of State Health Services, on June 23, 2020 Texas had the highest daily number of COVID-19 cases (5,489) since the pandemic began, and for twelve consecutive days had record-high hospitalizations.  Also on Wednesday, June 23rd, Houston Mayor Sylvester Turner said 97% of the intensive care unit beds in Houston are filled. Governor Abbott acknowledged this week that there is a massive outbreak of COVID-19 across the state of Texas, and announced that his office is examining greater localized restrictions.  Since June 3, Texas has been in Phase III of reopening, whereby all businesses in Texas are permitted to operate at up to 50% capacity, with very limited exceptions, and since June 12, 2020, restaurants have been permitted to expand their occupancy levels to 75%.

As there is currently no sign of slowing down this alarming upward trend, Texas leaders at the city and county levels are taking action to help flatten this curve.  Specifically, many Texas counties and two cities have issued orders requiring businesses to develop and implement health and safety policies that (1) require all employees and visitors to wear face coverings on the premises whenever social distancing of six feet or more is not feasible; and (2) outline other mitigating measures designed to reduce the spread of COVID-19, which can include temperature checks and other health screenings.  Texas businesses are required to post their health and safety policies conspicuously to provide sufficient notice to their employees, customers and visitors.

Local Government Requirements

Many Texas counties and cities have moved quickly to impose restrictions on businesses in the wake of the governor’s statement.  The new measures affecting employers in Austin, Dallas, El Paso, Houston, and San Antonio, although substantively similar, each require compliance by or before the end of this week.  Below are the effective dates, deadlines for compliance and penalties for each county imposing a mask order.  Please note that this list does not include every county in Texas that has imposed a face covering requirement to date.

Austin/Travis County

Travis County and the City of Austin have issued orders mandating that all public-facing businesses adopt and enforce health and safety plans that, at a minimum, require all employees and visitors to wear face coverings while on the premises.  The health and safety plan must be posted in a conspicuous location at or near each entrance.  Both orders are in effect until August 15, 20202, and businesses must comply with the orders by or before June 23, 2020, or be cited with a fine of up to $1,000.

Dallas County

Per Dallas’ Supplemental Order On Continuing Requirements After Expiration of Stay Home, Stay Safe, all employers providing goods or services directly to the public must develop and implement a health and safety policy, which at a minimum, requires all employees or visitors to wear face coverings while on the premises where six feet of separation is not feasible. Employers must post the health and safety policy in a conspicuous location at their workplaces.  This Order is in effect from June 19, 2020 through August 4, 2020.  Employers who do not develop, implement and post their health and safety policy by or before June 24, 2020 at 11:59 PM face fines of up to $500 for each violation.

El Paso County

On June 18, 2020, El Paso County issued its First Amendment to the Fourth Local Emergency Directive mandating that all businesses develop and implement a health and safety policy, which requires employees (including volunteers) and visitors to wear face coverings when maintaining six feet of separation is not possible. Although not required, the health and safety policy may also include temperature checks and health screenings.  Employers must develop and post the health and safety policy in a conspicuous location by or before June 21, 2020, or face fines of up to $500 for each violation.

Houston/Harris County

On June 19, 2020 Harris County issued an Order Regarding Health and Safety Policy and Face Coverings, which took effect on June 24, 2020, and is set to expire on June 30, 2020.  This Order requires businesses to develop, post, and implement health and safety policies which include, at a minimum, a requirement that workers, customers or visitors wear face coverings while on the premises.  Employers must develop and post the health and safety policy in a conspicuous location in their workplaces by or before June 29.  Failure to do so may result in fines of up to $1,000 for each violation.  Harris County also released its Guidance to Mitigate Spread of COVID-19 in the Workplace, along with a sample health and safety policy.

San Antonio/Bexar County

Bexar County has issued Executive Order NW-10, which is effective June 17, 2020 through June 30, 2020.  This Order requires businesses providing goods or services directly to the public to develop, post, and implement health and safety policies by or before June 22, 2020, which must include, at a minimum, a requirement that workers, customers or visitors wear face coverings while on the premises.  Failure to do so may result in fines of up to $1,000 for each violation.  On June 20, 20202, the City of San Antonio adopted the Bexar County Order.

Work Search Requirements Resume for Unemployment Insurance Claimants

Another recent notable development in Texas is that the Texas Workforce Commission (“TWC”) announced its plans to restore its work-search requirement, effective July 6, 2020.  Work search is a federal requirement to receive unemployment benefits.  According to the TWC, unemployment benefits recipients will continue to receive benefits, but must document their efforts to find new employment, with the first report due to the TWC by July 19, 2020.

Additionally, as we previously reported, the TWC had issued guidance concerning workers’ eligibility for continued unemployment benefits if they chose not to return to work for a number of permissible reasons.  Two such reasons, as initially drafted, were the individual being “high risk” defined as 65 years of age or older or living with someone who is high risk, also defined as 65 years of age or older.  The TWC has since revised its guidance with regard to these two categories, expanding the definition of high risk to include “people with medical issues, like heart disease, diabetes, cancer, or a weakened immune system, or are at a higher risk for getting very sick from COVID‑19.”

Employers operating in Texas should assess how these recent orders affect their operations, and immediately prepare their health and safety plans outlining the measures in place to help stop the spread of COVID.  Epstein Becker Green is continuing to monitor these developments, and ways in which Texas is responding to the alarming spike in COVID-19 cases throughout the state, and will provide further updates as they become available.

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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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