Texas Governor Greg Abbott’s May 5 announcement of Phase II of his plans to reopen Texas businesses expanded the scope of office-based and manufacturing work allowed to operate across the state, and implemented new workplace safety rules for offices and manufacturers. Under the governor’s Executive Order GA-21, all offices and manufacturers across the state may resume operations effective 12:01 a.m. on May 18, 2020, although such operations previously considered nonessential must operate at reduced capacity.
Currently, in Phase I, only those office-based and manufacturing activities deemed Essential Services because they were listed in version 3.0 of the federal Cybersecurity and Infrastructure Security Agency (CISA)’s Advisory Memorandum on Identification of Critical Infrastructure Workers During COVID-19 Response (CISA 3.0) are permitted to operate statewide. In Phase II, office and manufacturing workplaces included in CISA 3.0 will still be permitted to operate across the state at full capacity as Essential Services. This includes certain workers providing direct clinical care or healthcare support, workers in the petroleum and natural gas industries, and critical manufacturing workers.
Office-based services, which are not currently allowed to operate as Essential Services in Phase I because they are not listed in CISA 3.0, may resume limited operations effective May 18, 2020, as Reopened Services. Executive Order GA-21 limits those office-based Reopened Services to on-site work performed by the greater of (a) five workers or (b) 25% of the total office workforce. Office workers performing Reopened Services must “maintain appropriate social distancing.” While Executive Order GA-21 does not expressly define “minimum appropriate social distancing,” it encourages those providing Essential Services or Reopened Services to “use good faith-efforts and available resources” to follow minimum health standards published by the Department of State Health Services and available here.
In addition to Essential Service manufacturing operations allowed under CISA 3.0, Executive Order GA-21 allows all manufacturing activities to resume statewide in Phase II. Manufacturing activities not deemed Essential Services by a reference in CISA 3.0 may operate as Reopened Services, and are limited to “up to 25 percent of the total listed occupancy of the facility.” Whether operating as Essential Services or Reopened Services, “all manufacturers choosing to operate in Texas” are encouraged to make a good-faith effort to comply with new DSHS recommended health protocols.
In conjunction with the expanded scope of services allowed by GA-21, the Department of State Health Services updated its prior minimum health protocols for individuals and employers allowed to operate around the state, and published new guidelines for office-based employers and employees, and manufacturers. Key changes from the prior guidance applicable to all employers include recommendations to:
Employers with questions about whether they may return to work or rules applicable to their reopened workplaces should consult an attorney to discuss the specific application of recent federal, state, and local guidance and regulation to their business.
As noted in prior articles, the facts, laws, and regulations regarding COVID-19 are developing rapidly and frequently changing. Since the date of publication, there may be new or additional information not referenced in this update. JW will continue to provide up-to-date insights and virtual events regarding COVID-19 concerns.