Seyfarth Synopsis:  Although there is not yet a state wide stay-at-home order in effect in Texas, counties across the State are issuing sweeping directives closing most businesses and requiring their residents to stay at home to limit the spread of the virus that causes COVID-19.  Effective March 24, 2020 at 11:59 p.m., Harris, Bexar and Travis Counties and the cities of Houston, San Antonio and Austin have joined Dallas County in ordering residents to stay at home, subject to exceptions for “essential activities,” “essential businesses and operations,” and “essential government functions.”  Neighboring Counties (Collin, Galveston, Hunt, Denton, Williamson and McLennan, for example) have issued similar orders.  The duration of the stay-at-home orders varies with some remaining in effect until Thursday, April 9, 2020. 

All Residents of these Cities/Counties Must Remain at Home Except for Essential Activities, Essential Government Functions, or to operate Essential Businesses

The various orders are substantially similar and require all individuals to remain at home, except for specifically defined Essential Activities, Essential Government Functions, or to operate Essential Businesses.  The various orders require all non-essential businesses to cease operations except for minimum basic operations and permit employees to work from home.

Although each order differs slightly, Essential Activities (also known as Exempted Individual Activities) generally include the following:

  • Health and Safety for self of family or household members - to engage in activities or perform tasks essential to your health and safety, such as obtaining medication or visiting a health care professional or obtaining supplies needed to work from home.
  • Necessary Supplies and Services - to obtain or deliver necessary supplies or services (e.g., groceries, household consumer goods, products necessary to maintain the safety, sanitation, and essential operation of residences).
  • Outdoor Activity - to engage in outdoor exercise, including walking, in compliance with social distancing guidelines.
  • Care of Others - to care for family member, friend or pet in another household.
  • Perform Work at or for Essential Businesses and Operations - to perform work providing essential products and services at or for Essential Businesses or, for non-essential businesses, the performance of Minimum Basic Operations (discussed below).

Essential Businesses are defined to include:  

  • Essential Healthcare Operations (including hospitals, clinics, dentists, pharmacies, pharmaceutical, and biotechnology companies, other healthcare facilities, healthcare suppliers, home healthcare services providers, mental health providers, any related and/or ancillary healthcare services, or veterinary care). It does not include fitness/exercise gyms or elective medical, surgical, and dental procedures.
  • Essential Infrastructure (including construction, airport operations, water, sewer, gas, electrical, oil refining, roads and highways, public transportation, solid waste collection and removal, internet, and telecommunications systems);
  • Essential Retail (including any store that sell groceries and non-grocery products, and products necessary to maintaining the safety, sanitation, and essential operation of residences, food cultivation, including farming, livestock, and fishing, among others). Restaurants may remain open for food preparation, delivery, and carryout services only.  Some counties have specified that patrons should not wait inside the restaurant for their food or otherwise form lines outside their vehicles.
  • Essential Government Functions (including first responders, emergency management personnel, emergency dispatchers, court personnel, and law enforcement personnel). Some orders specify that each governmental entity is to identify and designate appropriate employees or contractors to continue providing and carrying out such functions;
  • Providers of Basic Necessities to Economically Disadvantaged Populations (including transit services, nonprofits and other businesses that provide food, shelter, and social services, and other necessities of life for economically disadvantaged or otherwise needy individual);
  • Essential Services Necessary to Maintain Essential Operations of Residences or Other Essential Businesses (including trash, recycling providers, plumbers, electricians and exterminators, funeral services, services such as legal or accounting services, when necessary to assist in compliance with legally mandated activities among others.)
  • Media Services (including newspapers, television, and radio companies);
  • Residential Facilities and shelters for seniors, adults, and children;
  • Banks and related financial institutions (including banks, credit unions, and other financial institutions and service providers as well as companies providing insurance services and products);
  • Childcare Facilities. Only childcare facilities enabling employees exempted from the orders to work. The orders place a number of restrictions on the facilities.
  • Businesses Needed for Transportation (include ride hailing, taxis, airlines, etc., provided they are used for “Essential Activities.”
  • Other Entities (including delivery services, gas stations, auto-repair business, laundromats, dry cleaners, hardware and supply stores, office supply stores, home repair service providers).

Exemption for Maintaining Minimum Basic Operations of Non-Essential Businesses

In addition to the above, Bexar and Travis also include a special carve out for employees of non-essential businesses.  The prohibition contained in the Orders do not extend to operations that maintain the value of the business’ inventory, ensuring security, processing payroll and employee benefits, or related functions or to personnel or activities that facilitate employees of the business being able to continue to work remotely.

Unique Requirements

Although the various Orders issued from Texas cities and counties are substantially similar, there are a few distinguishing features, some of which are highlighted below:

  • Bexar County directs rental property owners to temporarily suspend evictions for at least the next 30 days and suspends all Bexar County foreclosure proceedings for at least the next 30 days.
  • Bexar County contains an order barring price gouging and prohibits the sale of groceries, beverages, toilet articles, ice; meals, and medicine, pharmaceutical, and medical equipment and supplies above the price charged on 11 :59 p.m. on Thursday, March 19, 2020.
  • McLennan County has prohibited all travel, except Essential Travel and Essential Activities and requires people to use public transit only for purposes of performing Essential Activities or to travel to and from work to operate Essential Businesses or maintain Essential Government Functions.

Impact on Employers

Whether you operate an essential or non-essential business, these orders have significant implications for all employers. Therefore, businesses with employees in these cities and counties should be thinking about how they will address business closures and travel restrictions, and how they manage the health and safety of employees who continue to work through the pandemic. Employers with employees who will be traveling to and from work as permitted by the order should provide employees with a letter that verifies the employee is traveling to/from work for an Essential Business or to provide Minimum Basic Operations in the event they are stopped.  This is especially critical since Texas has not enacted a state-wide order and the rules, regulations, and enforcement will be county or city-specific.

We will continue to monitor developments in Texas. We encourage employers with questions to reach out to Seyfarth’s deep bench of lawyers for advice.  For more information about Governor Abbott’s Executive Orders please see here.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.