Hunton Employment & Labor Perspectives

As detailed in our previous alert, Texas Governor Greg Abbott recently committed to begin the gradual process of reopening businesses in Texas. On April 17, 2020, Governor Abbott issued two Executive Orders that relate to the strategic reopening of select services as the first step to open Texas in response to the COVID-19 pandemic.

Impact on Retail Employers

Executive Order GA 16 (“E.O. GA-16”) allows businesses that provide retail services that are not “essential services" to reopen, albeit with restrictions. Specifically, E.O. GA-16 establishes a “retail to-go” model that will allow such  businesses to reopen starting April 24, 2020, provided the reopened establishments deliver the items to customer’s vehicle, home or other location. Notably, Texas employers who reopen operations to provide retail to-go services are required to be in strict compliance with the terms required by the Texas Department of State Health Services (DSHS).

E.O. GA-16 expressly supersedes any conflicting rules set by local officials in response to the COVID-19 pandemic, but only to the extent that such a local order restricts essential services or reopened services allowed by E.O. GA-16.

E.O. GA-16 will remain in effect until April 30, 2020, unless it is rescinded or modified by the Governor.

Impact on Healthcare Employers

Executive Oder GA 15 (“E.O. GA-15”) relates to hospital capacity during the COVID-19 pandemic. More specifically, it permits Texas hospitals and doctors to resume certain services, effectively loosening Governor Abbott’s previously mandated restrictions on nonessential surgeries. E.O. GA-15 provides that, effective April 22, 2020, all licensed health care professionals and facilities must continue to postpone “…all surgeries and procedures that are not medically necessary to diagnose or correct a serious medical condition of, or to preserve the life of, a patient who without timely performance of the surgery or procedure would be at risk for serious adverse medical consequences or death as determined by a patient’s physician…”

However, this prohibition does not apply to:

(a)     any procedure that, if performed in accordance with the commonly accepted standard of clinical practice, would not deplete the hospital capacity or the PPE needed to cope with COVID-19, or

(b)     any surgery or procedure performed in a licensed health care facility that has certified in writing to Texas Health and Human Services Commission both (1) that it will reserve at least 25% of its hospital capacity for treatment of COVID-19 patients, accounting for the range of clinical severity of COVID-19 patients, and (2) that it will not request any PPE from any public source—whether federal, state, or local—for the duration of the COVID-19 pandemic.

E.O. GA-15 will remain in effect until May 8, 2020, unless it is rescinded or modified by the Governor.

This is a rapidly evolving situation. We will continue to monitor legislative actions taken at the local, state and federal levels, and will be updating readers about changes relating to business reopening requirements in the coming months.