The Open Texas Plan: Expanding Phase 2 of the Governor’s COVID-19 Reopening Plan

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Last month, Texas Governor Greg Abbott issued Executive Order GA-18 (GA-18) regarding the reopening of Texas businesses during the COVID-19 crisis. GA-18 was part of the Governor’s 3-phase plan for reopening the state and was issued in tandem with a report entitled Texans Helping Texans: The Governor's Report to Open Texas.

On May 5, 2020, Governor Abbott announced phase 2 of his reopening plan and issued Executive Order GA-21 (GA-21), which superseded GA-18, expanded the categories of reopened services initially announced in GA-18 and, subject to certain conditions and limitations, permitted newly added businesses to reopen on staggered dates.  For a discussion of these two initial orders, please click here.

On May 18, 2020, Governor Abbott expanded phase 2 of his reopening plan and issued Executive Order GA-23 (GA-23).  GA-23 supersedes GA-21 and changes the terminology the governor previously used regarding categories of authorized and unauthorized services. Instead of using the terms Essential Services and Reopened Services, GA-23 uses the term Covered Services. Covered Services consists of everything listed by the U.S. Department of Homeland Security’s Cybersecurity and Infrastructure Security Agency (CISA) in its Guidance on the Essential Critical Infrastructure Workforce, plus religious services conducted in churches, congregations, and houses of worship. Neither CISA services nor religious services are subject to GA-23’s occupancy or operating limits.

In addition to CISA services and religious services, authorized Covered Services now also include the following businesses, which were permitted to reopen on May 18:

  • Child Care Centers
  • Massage and Personal-Care Centers (tattoo studios, hair removal series, hair loss treatment, etc.)
  • Youth Clubs

Additional Covered Services that were permitted to reopen on May 22, subject to a 25% occupancy limit, include:

  • Bars, wine tasting rooms and breweries
  • Rodeo and equestrian events
  • Bowling alleys, bingo halls, simulcast racing, and skating rinks
  • Aquariums and natural caverns

Additionally, effective May 22, restaurants, which were initially limited to operating at 25% capacity, can operate at 50% capacity.  This capacity limitation does not apply to outdoor seating areas. Also, staff is not counted when calculating occupancy, which is based on customer headcount.

GA-23 also updated previous restrictions for offices, manufacturing facilities and gyms, although all remain subject to social distancing requirements.

Offices can now operate with the greater of 10 individuals or 25% of the total office workforce. Importantly, this headcount standard varies from the occupancy limits used for most other types of Covered Services, which are tied to the maximum occupancy load set by local and/or state law.

Non-CISA manufacturing facilities are permitted to operate at up to 25% of the facility’s total listed occupancy.

Gyms and exercise facilities are permitted to operate at up to 25% of the total listed occupancy. Locker rooms and shower facilities must remain closed, but restrooms are permitted to be open. Employees and contractors are not counted towards the 25% occupancy limitation.

Importantly, the aforementioned provisions do not apply to El Paso, Randall, Potter, Moore, and Deaf Smith Counties.  Instead, these counties must wait until May 29 before the above-listed businesses can reopen due to an increase in COVID-19 cases.

On May 29, zoos can reopen (subject to the 25% capacity limitation), and on May 31, youth camps and youth sports can also begin to operate. 

Beginning on June 1, schools have the option to provide in-person summer school programs, as long as they follow social distancing practices. 

As with prior executive orders, GA-23 encourages Texans to wear face coverings but reiterates that no county or municipality can impose civil or criminal penalties for failure to do so.  However, this prohibition does not preclude a business from requiring a customer to follow additional hygiene measures. 

GA-23 grants the governor the sole discretion to identify any county or counties in which non-CISA services should be terminated or restricted, based on his determination in consultation with medical professionals that only CISA services and religious services should be permitted in any county. His determination may be based on, among other things, factors such as an increase in the transmission of COVID-l9 or in the amount of COVID-19-related hospitalizations or fatalities.

GA-23 took effect on May 18 and expires at 11:59 p.m. on June 3, unless it is modified, amended, rescinded, or superseded by the governor.  For a detailed list of minimum recommended health protocols and guidelines accompanying GA-23, please click here.

Shortly after issuing GA-23, on May 21, 2020, Governor Abbott issued Executive Order GA-24, which immediately terminated prior restrictions on air travelers arriving from California, Connecticut, New York, New Jersey, Washington, Atlanta, Georgia, Chicago, Illinois, Detroit, Michigan, and Miami, Florida. Travelers arriving from these destinations are no longer required to self-quarantine upon arrival in Texas.

And, most recently, on May 26, 2020, the governor issued a proclamation expanding the list of GA-23 Covered Services that can, subject to certain occupancy restrictions, reopen under Phase 2 of the state's reopening plan.  With this proclamation, water parks, adult recreational sport programs, driver education programs, and food-court dining areas within shopping malls can resume operations on varying dates between May 29 and June 15, 2020.

Municipal and County Orders

While most municipalities and counties began to align or wind down their pandemic-related orders with the issuance of Executive Order GA-18 on April 27, that has not been the case with Dallas County, which continues to issue COVID-related orders.  Most recently, on May 20, Dallas County Judge Clay Jenkins extended three orders regarding food processing plant requirements, long-term care facilities, and continuing general requirements issued in early May. The supplemental order concerning food processing plant requirements, the amended order concerning long-term care facilities, and the supplemental order on continuing general stay-safe requirements took effect on May 20 at 11:59 p.m. and remain in effect through June 12 at 11:59 p.m.

The third general order continues to: (1) prohibit door-to-door solicitation; (2) prohibit employers from implementing rules requiring a negative test or note from a healthcare provider before a recovered employee can return to work; (3) require households to self-isolate if a member of the household tests positive; (4) require schools to provide a safety plan 72 hours before students return to a classroom setting; and (5) instruct all employees to stay home if they are sick.

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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