Publication

March 26, 2020;
Updated March 28, 2020 to reflect new guidance from the U.S. Department of Labor

Texas Governor Greg Abbott announced on March 22, 2020 that he would refrain from issuing a statewide shelter-in-place order amid the coronavirus pandemic and instead would leave the decision up to city and county leaders.  In the days that followed, numerous Texas cities and counties issued local versions of shelter-in-place orders that vary in length and substance. 

In this update, we will explore the critical details of each order, the differences between these orders, and what this means for Texas employers.

What the Orders Say – and Don’t Say

On March 22, 2020, Dallas County issued a “shelter in place” order, which took effect at 11:59 p.m. on Monday, March 23, 2020, and runs until April 3, 2020, unless extended.  The order generally requires Dallas County residents to remain at home except when performing Essential Activities, Essential Business, or Essential Governmental Functions (residents of shared dwellings may use common or shared outdoor space so long as they maintain a distance of at least six feet from any other person).

On March 23, 2020, San Antonio Mayor Ron Nirenberg and Bexar County (San Antonio) Judge Nelson Wolff similarly issued a “shelter in place” order.  On March 24, 2020, Bell County, Collin County, Denton County, El Paso County, Harris County, Hays County, Hunt County, McClennan County, Rockwall County, Tarrant County, Travis County and Williamson County issued their own orders, as did the cities of Austin, Dallas, El Paso and Waco.  Other counties and cities are expected to follow suit in the coming days.

With the exception of Collin County, discussed below, the Dallas County order serves as the model for the others.  The Orders provide:

Essential Activities for which residents may leave home include:

• Activities or tasks essential to the health and safety of a resident or member of their family or household (e.g., obtaining medical supplies or medication, seeking health care, or obtaining supplies needed to work from home);
• Obtaining necessary services or supplies for a resident or member of their family or household, or to deliver those services or supplies to others (e.g., obtaining food, household consumer products, pet food and supplies, and other "products necessary to maintain the safety, sanitation, and essential operation of residences);
• Outdoor activities, as long as all involved maintain six feet of social distancing (e.g., walking, biking, hiking, or running);
• Caring for a family member or pet in another household;
• Performing work providing essential products and services at an Essential Business; and
• Carrying out other activities specifically allowed in the Order.

Businesses other than Essential Businesses (as defined below) are ordered to cease “all activities at facilities located within the County,” although the Order clarifies that not-essential businesses may continue to allow employees and contractors to work from home.  In addition, Essential Businesses must “to the greatest extent possible” comply with a set of Social Distancing Guidelines available here.

The Orders defines Essential Businesses to include:

1.       Essential Healthcare Operations, including hospitals, clinics, dentists, pharmacies, and biotech companies, healthcare facilities, healthcare suppliers, mental health providers, substance abuse service providers, blood banks, medical research, laboratory services, or any related and/or ancillary healthcare services.”  Also exempted are home-based and residential care for seniors, adults, and children, as well as veterinary care and animal health and welfare services.  The Orders also ban “elective medical, surgical, and dental procedures” which “can be postponed or cancelled based on patient risk” considering the need to redirect resources to the COVID-19 response.  Notably, Governor Greg Abbott has issued a statewide ban that prohibits all surgeries and procedures that are not immediately medically necessary to correct a serious medical condition of, or to preserve the life of, a patient who without immediate performance of the surgery or procedure would be at risk for serious adverse medical consequences or death,” excepting those procedures which can be “performed in accordance with the commonly accepted standard of clinical practice [and] would not deplete the hospital capacity or the personal protective equipment needed to cope with the COVID-19 disaster.”

2.       Essential Government Functions, including “all services provided by local governments needed to ensure the continuing operation of the government agencies to provide for the health, safety, and welfare of the public.” Those functions, however, must be performed in compliance with the Social Distancing Guidelines.

3.       Essential Critical Infrastructure activities, including the operation and maintenance of public works construction, residential and commercial construction, internet, and telecommunications systems, financial institutions, airport operations, water, sewer, gas, electrical, oil refining, roads and highways, public transportation, solid waste collection and removal, defense and national security-related operations, and essential manufacturing operations. All work by Essential Businesses must comply with the Social Distancing Guidelines.

4.       Essential Retail including grocery stores, warehouse stores, big-box stores, bodegas, liquor stores, gas stations and convenience stores, farmers’ markets that sell food products and household staples, farming, fishing, livestock cultivation, businesses that ship or deliver goods or services directly to residences, restaurants and other facilities that prepare and serve food for delivery or carry out, schools and other facilities that typically provide free services on a pick-up and take-away basis only, laundromats, dry cleaners, laundry service providers, gas stations, auto-supply, auto and bicycle repair, hardware stores, and businesses that supply products needed for people to work from home.

5.       Providers of Basic Necessities to Economically Disadvantaged Populations, defined as “[b]usinesses that provide food, shelter, and social services, and other necessities of life for economically disadvantaged or otherwise needy individuals.”

6.       Essential Services Necessary to Maintain Essential Operations of Residences or Other Essential Businesses, including trash and recycling collection and disposal, mail and shipping services, building cleaning and maintenance, warehouse/distribution and fulfillment, storage for essential businesses, funeral homes, crematoriums and cemeteries, plumbers, electricians, exterminators, “other service providers who provide services that are necessary to maintaining the safety, sanitation, and essential operations of residences and Essential Businesses,” professional services including legal and accounting services as needed to support compliance with other legally mandated activities, and businesses that supply other Essential Businesses with supplies needed to operate.

7.       News Media including newspapers, television, radio, and “other media services.”

8.       Childcare Services defined as “[c]hildcare facilities providing services that enable employees exempted in this Order to work as permitted.”

The Orders also provide that "[r]eligious and worship services may only be provided by video and teleconference," and requires that in-person preparations for such services be limited to 10 people who must adhere to the Social Distancing Guidelines.  The Orders also carry forward several measures already in place across the counties, including a suspension of eviction hearings and writs of possession for 60 days.

It is important to note that Collin County, in a diversion from all other Texas counties and cities issuing shelter in place orders, has deemed all businesses “essential businesses.”  Collin County Judge Chris Hill has stated that if businesses are able to stay open while staying within the governor’s guidelines of no more than 10 people, then they should stay open for business.

Period of Enforcement

As illustrated below, the effective period for the shelter in place orders varies by city and county. Importantly, individuals are expected to follow the orders for their county of residence, not their county of employment, with the exception of Cameron County, which has ordered: “all employees of Cameron County who do not reside in Cameron County are ORDERED to shelter in their place of residence.”  For example, a Dallas County resident who is employed in Collin County must follow the restrictions set forth in the Dallas County Order until April 3, 2020 although Collin County’s Order differs in substance and expires on March 31.

Changes to Your Workforce

Whether or not your business is deemed “essential,” you may be considering changes to your workforce for employee safety and in response to the undeniable economic impact of the pandemic. Such changes may include furloughing employees, laying off employees, or reducing an employees’ rate of pay/hours.

We suggest you consider all available options carefully before making any decision, and refer to the following chart for an overview, with details below the chart. Whether notice is legally required as detailed below, we recommend all employers provide written notice to employees of their decision, including an explanation of the rationale and assurance that these measures are only being taken in response to the pandemic and with the ultimate goal of returning to business as usual in the near future. Goodwill toward your employees will go a long way in rebuilding the business.

What Should You Do?

With many employers facing the difficult decision of whether to furlough or lay off employees, the critical question is the expense associated with each choice.  If you have a generous vacation policy, and many tenured employees with banks of hours, it may be more expensive to lay off employees because you would be required to pay out all earned vacation. If you furlough employees, you must maintain benefits and pay sick leave as requested, which includes federal and/or state. Your business also may be required to pay sick leave under the new federal law. You may consider layoff or furlough of some employees and reduction in hourly pay or salary for others.

Other Laws to Keep in Mind

Texas Unemployment Insurance

Work-search requirements and the “waiting week” have been waived for unemployment claimants.  Unemployment benefits insurance much more efficient and streamlined: employees may go to https://twc.texas.gov/ to file on their person computer, tablet or Smartphone.

Texas Shared Work Program

There is an alternative to laying off employees if business has slowed down as a result of COVID-19.  The Texas Workforce Commission offers a Shared Work program, which is a smart alternative to a layoff.  The program allows employers to reduce the hours of full-time employees by as much as forty percent, while their workers collect partial unemployment benefits to replace a portion of their lost wages.

All employers with two or more full-time or permanent part-time employees can participate in the program, which is not designed for seasonal separations.  To qualify, the business’ reduction of work cannot be less than ten percent or more than forty percent, and the reduction must affect at least ten percent of the employees in a unit.  Additional details are available here.

New Federal Sick Leave Law

The Families First Coronavirus Response Act ("FFCRA") becomes effective April 1, 2020.

• Employers of up to 500 employees (see below for calculation method) must provide 80 hours of paid sick leave for full time employees (average hours worked over two weeks for part time) if there is work for the employee available and the employee is unable to work (or telework) because:

1. The employee is subject to a Federal, State, or local quarantine or isolation order related to COVID-19.  (This includes any government order directing people to remain at home unless they work for an essential business);
2. The employee has been advised by a healthcare provider to self-quarantine due to concerns related to COVID-19;
3. The employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis;
4. The employee is caring for an individual who is subject to an order as described in subparagraph 1 above or has been advised as described in paragraph 2 above; or
5. The employee is caring for a child of such employee if the school or place of care for the child has been closed, or the childcare provider for the child is unavailable, due to COVID-19 precautions.

• If your business closed before or after April 1 due to lack of business, or if required to close pursuant to Federal, State or local directive, sick leave is not due.
   
• Intermittent sick leave is permitted with the consent of the employer (it is not required).
   
• If business closes while an employee is on FFCRA sick leave, they must be paid for leave through the date of closure.
   
• Businesses with less than 50 employees are potentially exempt from providing sick leave pursuant to reasons four and five above (as amended by the CARES Act) and should document any hardship presented by providing this leave (after considering the impact of potential tax credits) and wait for further guidance from the DOL.
   
• Employees may use FFCRA paid sick leave before using state or local paid sick leave, or accrued PTO.
   
• Paid leave provided prior to April 1, 2020, does not count to fulfill obligations under the FFCRA.
   
• Employers must require documentation in support of the reason for leave and include:  
  • Employee’s name, qualifying reason for requesting leave, statement that the employee is unable to work, including telework, for that reason, and the date(s) for which leave is requested; and
  • Documentation including a copy of the Federal, State or local quarantine or isolation order related to COVID-19 applicable to the employee (reason 1 above) or written documentation by a health care provider advising the employee to self-quarantine due to concerns related to COVID-19 (reasons 2 to 4 above) or notice that has been posted on a government, school, or day care website, or published in a newspaper, or an email from an employee or official of the school, place of care, or child care provider (reason 5 above). 
     
• If you intend to claim a tax credit under the FFCRA for payment of sick leave wages, you should retain the FFCRA documentation in your records.

How Much to Pay – Employees must be paid based on their required compensation as follows:

• Regular rate of pay subject to a limit of: $511 per day and $5,110 in the aggregate for a use described in paragraph (1), (2), or (3) above; or
• Two-thirds of the regular rate of pay subject to a limit of: $200 per day and $2,000 in the aggregate for a use described in paragraph (4), (5), or (6) above.

Emergency Federal Medical Leave Expansion Act 

The Emergency Federal Medical Leave Expansion Act ("EFMLE") becomes effective April 1, 2020.

• The EFMLE applies under the following circumstances:

1. The EFMLE applies to employers with fewer than 500 employees (see below);
2. Employees must be employed at least 30 calendar days at the time leave is requested;
3. The need for leave must be a Qualified Need Related to A Public Health Emergency (“PHE”);
4. A PHE exists when declared by a Federal, State or local authority due to COVID-19; and
5. The employee must be restored to their position upon return from leave.

• An employee can request this leave for a very narrow reason: if there is work for the employee and they are unable to work (or telework) due to the need to care for their child under 18 years of age if the child’s elementary or secondary school or place of care is closed, or the care provider of such child is unavailable, due to a PHE.
   
• Intermittent expanded medical leave is permitted with the consent of the employer (it is not required).
   
• If your business closed before or after April 1 due to lack of business or if required to close pursuant to Federal, State or local directive, expanded medical leave is not due.
   
• If your business closes while an employee is on expanded medical leave, employees must be paid for leave through the date of closure.
   
• Businesses with less than 50 employees are potentially exempt from providing sick leave pursuant to reasons four and five above (as amended by the CARES Act) and should document any hardship presented by providing this leave (after considering the impact of potential tax credits) and wait for further guidance from the DOL. 

The factors are not evaluated as stand-alone.  The entire relationship is to be reviewed in its totality. 

Visit our COVID-19 Hub for ongoing updates.