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As more state and local governments weigh “shelter in place,” including Texas, where Governor Gregg Abbott recently issued Executive Order GA-08, many are left to contemplate what constitutes an “essential business” and what does “shelter in place” now mean in states like Texas? “Shelter in place” now mean in Texas? The answers are not always clear or consistent, but there are steps you can take to be prepared.

While it is ultimately up to each city, county or state to make these decisions, there are some businesses that will generally be considered “essential.” These businesses will not need to close unless specifically ordered. They include any business involved in healthcare, first responders, food production and delivery, medical supply, public utilities, communications and information technology, grocery stores, and gas stations. Companies that supply the operations of these exempted businesses may also be considered essential. If your company supplies businesses that clearly fall into the essential category, there’s a good argument that your business is essential as well. Currently, the Texas state government has issued a less restrictive order than its largest counties and cities.

I. Texas: Statewide order regarding social gatherings, restaurants, bars, and gyms, nursing home visits, and schools

Texas Governor Gregg Abbott’s Executive Order, issued March 19, 2020, contains the following provisions:

  1. “[E]very person in Texas shall avoid social gatherings in groups of more than 10 people.”
  2. “[P]eople shall avoid eating or drinking at bars, restaurants, and food courts, or visiting gyms or massage parlors.” The order “allow[s]” and even “highly encourage[s]” “the use of drive-thru, pickup, or delivery options.”
  3. “[P]eople shall not visit nursing homes or retirement or long-term care facilities unless to provide critical assistance.”
  4. “[S]chools shall temporarily close.”

Governor Abbott issued the order pursuant to his powers under the Texas Disaster Act of 1975, Tex. Gov. Code § 418.001 et seq. The order has “the force and effect of law.” Id. § 418.012. The order took effect at 11:59 p.m. on March 20and will remain in effect through April 3, 2020, though the Governor can extend it. The full order can be found here.

The “10 person” rule has been adopted by almost every non-urban county and small city in Texas.

II. Dallas County / City of Dallas: Shelter-in-place

On March 22, 2020, Dallas County issued a “shelter in place” order for “all individuals anywhere in Dallas County.” The Order was amended on March 24, 2020.  The Order will remain in effect until 11:59 p.m. on April 3, 2020, or until it is either rescinded, superseded, or amended.

As amended, the Order contains the following principal provisions:

  1. All people living within Dallas County shall shelter at their place of residence, except to perform “Essential Activities,” to provide or perform “Essential Government Functions,” or to operate “Essential Businesses.”
  2. All businesses, except for essential businesses, shall cease all activities at facilities within Dallas County, though employees may work from home.
  3. No public gatherings of any number except for a single household or living unit are permitted.
  4. Restaurants are limited to take-out, delivery, or drive-through services.
  5. Religious services may be provided only by video or teleconference.
  6. All elective medical, surgical, and dental services are prohibited.

“Essential Business” includes a number of categories:

  • Essential Healthcare Operations (most healthcare services; this exemption “shall be viewed broadly”);
  • Essential Governmental Functions (services provided by local governments for public health, safety, and welfare);
  • Essential Critical Infrastructure (water, sewer, gas, electrical; roads and highways; public transportation; financial institutions “except non-depository lenders (such as payday lenders)”; payroll, accounting, and insurance companies; etc.);
  • Essential Retail (food service, cultivation, and delivery; laundry, gas stations, hardware stores, etc.);
  • Providers of Basic Necessities to Economically Disadvantaged Population;
  • Essential Services Necessary to Maintain Essential Operations of Residences or Other Essential Businesses (trash and recycling collection, mail, building cleaning and maintenance, funeral homes, plumbers, electricians, and professional services “such as legal and accounting services, when necessary to assist in compliance with legally mandated activities”);
  • News Media; and
  • Childcare Services.

The amended Order contains an express enforcement provision.  In Section 3, the Order states that the Dallas County Sheriff’s Office, the Dallas County Fire Marshal’s Office, “and other peace officers” are authorized to enforce the Order.  Violations of the Order are misdemeanors, subject to civil or criminal enforcement and “punishable by a fine not to exceed $1,000 and/or confinement in jail for a term not to exceed 180 days.”

The Order contains several other definitions and provisions, including lifting restrictions on the hours of delivery of food and ordering the suspension of eviction hearings for at least 60 days. Here is the full text of the amended Order. Dallas county has also prepared a FAQ.

In addition, the City of Dallas provided its own interpretation of the Dallas County order on March 23. Among the details this interpretation adds to or clarifies about essential businesses under the order include:

  • Chiropractic and physical therapy providers are deemed to be essential healthcare operations;
  • Landscaping companies and tile manufacturing are considered essential to residential and commercial construction (and thus part of essential critical infrastructure);
  • Rideshare companies (e.g., Uber and Lyft) are essential public infrastructure as public transportation;
  • Auto dealers are a “related facility” to auto repair, and thus considered essential retail;
  • Department stores, neighborhood markets, retail stores located within a hotel, and pet supply stores are considered “essential retail”;
  • Manufacturing facilities that produce personal hygiene products are essential businesses that supply products needed for people to work from home;
  • Plant nurseries are essential businesses that supply other Essential Businesses with the support of supplies needed to operate;
  • Food pantries are specifically included as providers of basic necessities to economically disadvantaged populations;
  • Apartment leasing offices, pool service companies, security personnel, management companies for public improvement districts, and computer and cell phone repair businesses are essential services necessary to maintain essential operations of residences or other essential businesses;
  • Attorneys, together with their clients, shall determine what legal services are necessary to comply with legally mandated activities;
  • Hotels are considered a “place of residence” under the order and are considered an Essential Business, but any out of town visitors (i.e., individuals not “living” in a hotel) are not subject to the order;
  • The order applies to individuals who live within Dallas County but work in another county;
  • The order does not require individuals to carry documentation as proof that they are employed by an essential business;
  • The order does not require Essential Businesses to take the temperature of employees that report to work;
  • Social gatherings of any number of people are not permitted under the Order unless it is to take care of a family member or pet in another household;

Further, the City of Dallas’s interpretation states that the following are nonessential businesses:

  • Institutions of higher education;
  • Print shops;
  • Estate sales/garage sales;
  • Car washes;
  • Real estate appraisers and inspectors; and

The full text of the City of Dallas interpretation can be found here.

On March 24, 2020, the City of Dallas issued new emergency regulations that largely adopted the order by the County of Dallas, including parts of the City of Dallas located in counties other than Dallas County. The full text of the City of Dallas’s regulations can be found here.

Harris, Travis, Bexar, Tarrant, Williamson, Brazos, Fort Bend, McLennan, Denton, San Jacinto, and El Paso counties, along with the major cities of Austin, San Antonio, Fort Worth, Waco and El Paso have also adopted “shelter in place” orders.  Collin County has issued a slightly less restrictive order, while other counties and cities continue to follow the Governor’s state-wide order. 

FBT will continue to update this information as orders are issued, modified and enforced.

To provide guidance and support to clients as this global public-health crisis unfolds, Frost Brown Todd has created a Coronavirus Response Team. Our attorneys are on hand to answer your questions and provide guidance on how to proactively prepare for and manage any coronavirus-related threats to your business operations and workforce.