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A Tale of Three Counties: It Was The Most Inconsistent of Times

Written By: Michael Gerstle

COVID-19

It was the best of times, it was the worst of times, and it was definitely the most inconsistent of times.  As Texas continues to follow the Federal model of a decentralized approach to stay-at-home and business cessation orders, three counties (well, actually, two counties and one city) reflect the inconsistent approaches taken by different jurisdictions.  While the decentralized model may work well for businesses that operate solely within the boundaries of a given city or county, it can be problematic for businesses that operate across different city and county lines.

To contrast the different approaches adopted by the different jurisdictions, we will focus on Collin County, Dallas County and the City of Austin.

Collin County 

Collin County falls on the far end of the spectrum of major metropolitan counties in Texas, issuing a stay-at-home order that has very little significance to the construction industry or any businesses, at all.  The March 24, 2020 Order requires all residents of the County to stay home except for travel for “essential activities.”  According to Collin County, all businesses, jobs, and workers are essential to the financial health and well-being of Collin County.  For all intents and purposes, all businesses may continue operating in Collin County.

Although Collin County is requiring businesses and employers to take actions necessary to prevent the spread of COVID-19, it is not imposing any specific social distancing standards. Instead, the Order states that “social distancing is generally understood to mean staying at least six feet away from other people, avoiding mass gatherings, working from home if possible, canceling or postponing large meetings, and not shaking hands.”

Collin County’s relatively lax Order has drawn the ire of Dallas County, the county directly to its south, as well as cities within the County.  The City of McKinney, the county seat for Collin County, passed a more restrictive stay-at-home order.  A Collin County judge recently issued a temporary restraining order, precluding enforcement of the City’s policy.  The Court is scheduled to hear an application for temporary restraining order against the City later this week.  We will devote a separate blog to the city-county power struggle over stay-at-home and business cessation orders.

Dallas County

Dallas County falls in the middle of the spectrum, with a March 22, 2020 Amended Order that is similar to ones many other counties in the State later issued.  On March 29, 2020, in recognition that Dallas County is one of the hot spots for COVID-19 in Texas, the County Judge issued a second Amended Order (“March 29th Order”) with more requirements and restrictions on construction activities.  Since the March 29th Order supersedes the March 22nd one, we will focus exclusively on the March 29th Order.

The March 29th Order defines Essential Activities and Essential Businesses.  Essential Activities include performing work providing essential products and services to an essential business.  Among the defined categories of Essential Businesses is Essential Critical Infrastructure, a term defined to specifically include public works, residential and commercial construction.  On March 29, 2020, the County also issued Rules for the Construction Industry (“Dallas County Construction Rules”) to compliment the March 29th Order.

The March 29th Order and Dallas County Construction Rules prohibit “elective additions and maintenance” altogether, without providing a definition of either.  For all other types of construction (public works, residential, commercial, and schools), the Order requires employers to follow the COVID-19 Safety Recommendations issued by the Construction Industry Safety Coalition (”CISC”) including but not limited to a delineated list of 14 items.[1]

The 14 specific items listed in the Order and Rules are as follows.

  1. Mandatory temperature checks of all workers before they leave home. If a worker has a temperature above 99.6 degrees Fahrenheit, then they are prohibited from going to work and must remain at their residence;
  2. Temperature checks by a supervisor of all workers with a forehead thermometer at the construction site before they may begin work. If an employee or contractor has a temperature above 99.6 degrees Fahrenheit, then they are to be sent home immediately;
  3. Implement shift work such that each shift shall have no more than 50% of the workers who were on shift on March 16,2020;
  4. Once assigned to a shift, workers shall not change from one shift to another;
  5. Limit crossover of subcontractors;
  6. Prohibit gatherings during meals or breaks;
  7. Workers must keep a 6 foot distance between people at all times, unless the work being performed requires multiple individuals for the safety of the workers;
  8. Workers shall not use a common water cooler. Employers shall provide individual water bottles or instruct workers to bring their own;
  9. Employers must allow non-essential personnel to work from home when possible;
  10. Employers must provide soap and water and hand sanitizer in the workplace, including all restrooms. Ensure that adequate supplies are maintained;
  11. If running water is available at the site, workers must wash their hands for at least twenty (20) seconds:
    a.  Before workers begin work;
    b.  After workers remove gloves;
    c.  Before and after the use of shared items such as tools or multi-user devices;
    d.  Before and after any meal or restroom breaks; and
    e.  After a worker’s shift or work time ends.
  12. Mandatory rest breaks of at least fifteen (15) minutes for every four (4) hours worked so workers may follow hygiene guidelines;
  13. Provide one (1) working flushing toilet for every fifteen (15) workers on site or one (1) outdoor portable toilet for every 10 workers on site;
  14. No adverse action taken against an employee who has been quarantined, or advised to self-quarantine, due to possible exposure to coronavirus; and Designate a COVID-19 safety monitor on each site who has the authority to enforce these rules.

As the March 29th Order took effect at 11:59 p.m. on March 29th, it is still too early to tell how the County will monitor compliance with the Rules.

City of Austin

At the diametrically opposite end of spectrum from Collin County is the City of Austin, which has imposed the most restrictions on construction in the State.  On March 24th, the Mayor issued a Stay Home—Work Safe Order (“Order”) that defines exemptions, Essential Activities, and Essential Businesses.

The Order specifically exempts Critical Infrastructure, as defined in an exhibit to the Order, from the stay-at-home and business cessation mandate.  That exhibit defines Critical Infrastructure as including construction, including public works construction, that, among other items, “supports essential businesses, government functions or critical infrastructure”.  The Order also references the US Department of Homeland Security Cyber and Infrastructure Security Agency’s Essential Critical Infrastructure Workforce Memorandum (“CISA Memo”) for other types of projects that are encompassed in the City’s definition of Critical Infrastructure.

Unlike almost every other county and city in the State, the City of Austin’s list of exempt activities or Essential Businesses does not specifically include residential or commercial construction.  To clarify what the Order includes and what it does not, the City issued a Guidance for the Construction Industry that states, “in general, commercial and residential construction activities are prohibited under the Order.”

In its Guidance document, the “very limited situations” where the construction is allowed are identified as follows.

  1. Public works construction projects
  2. Affordable housing projects
  3. Construction of facilities for individuals experiencing homelessness
  4. Construction of facilities that provide social services
  5. Construction of facilities that are defined in the Order as Essential Businesses, Essential Government Functions, or Critical Infrastructure[2]
  6. Construction of facilities specifically required by the City in response to the current COVID-19 emergency.


What the Dickens does this all mean? 

Texas is a big, populous state with a divergence of voices.  That divergence is reflected in the inconsistent stay-at-home orders issued across the State, with Collin County and the City of Austin presenting two diametrically opposite views.

The first step in determining whether a project is compliant with the stay-at-home orders of a particular jurisdiction is to determine whether the city and/or county in which the project is located has issued such orders.  If such orders are in place, the next step is to determine whether the type of construction being undertaken is an exempt activity, Essential Business or prohibited activity. To assist in finding the orders, we have collected and posted the most recent stay-at-home orders from all the counties and the largest cities in Texas on our website at https://www.gstexlaw.com/covid-19-resources/.

Unfortunately, those may be the easiest two steps in the process.  The counties and cities have imposed different work site restrictions and obligations that require a more detailed and thorough analysis of each of the applicable orders.

The attorneys at GS are available to answer any questions you may have and to assist you in navigating these uncharted waters. Contact us at info@gstexlaw.com.

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FOOTNOTES

[1] The Rules, in contrast, require employers involved in construction activity to follow the COVID-19 Safety Recommendations issued by the CISC “including” the same 14 delineated items.  From a legal perspective, the distinction between “including but not limited to” in the Order (a non-exclusive list) and “including” in the Rules (an exclusive list) could mean that a longer list of items contained in the CISC Recommendations are also mandatory in Dallas County. It is unclear whether the County intended to obligate contractors to a potentially longer list of requirements or whether sloppy drafting is the root cause of the inconsistent language.

[2] In our firm’s Alternative Interpretation of City of Austin and Travis County Orders, we presented the argument that the CISA Memo specifically includes residential and commercial construction as one type of Critical infrastructure.  We understand that the Mayor of Austin was unpersuaded by that argument.