With an unemployment rate now below 8% and Tesla announcing the construction of a billion-dollar assembly facility in Austin, the City of Austin is climbing its way out of the deep trough left by the novel coronavirus.  Depending on your view of Austin politics (that topic alone would consume thousands of pages), to ensure that the trend lines continue in the right direction or to make the business climate in the City even more unfriendly, the City along with Travis County have recently extended the face covering requirements and gathering-size limitations until December 15, 2020.

1.     The City and County Orders

On August 14, 2020, Mayor Adler of the City of Austin issued Order No. 20200815-019 (the “City Order”) and Travis County Judge Briscoe issued Order 2020-16 (the “County Order”). The Orders are generally coextensive and extend emergency rules that were set to expire in November. The Orders went into effect at 12:01 a.m. on August 16, 2020 and will continue through December 15, 2020.

2.    Face Coverings

 The Orders require that all persons, “including those persons attending a protest or demonstration,” wear some form of commercially made or house made face covering that covers the nose and mouth.

Among the exclusion to the face covering requirements, and as they may be relevant to most construction businesses and sites, the face-covering requirement does not apply to:

1.    Any person with a medical condition or disability that prevents wearing a face covering;
2.   Any person while the person is eating or drinking, or is seated at a restaurant to eat or drink;
3.   Any person obtaining a service that requires temporary removal of the face covering for security surveillance, screening, or the need for specific access to the face, such as while at a bank or dentist;
4.   Any person while temporary removal of the face covering is necessary for communication by or with a person who is hearing impaired.

The Orders continue to require that all businesses and commercial entities implement and maintain a health and safety policy or plan (“Health and Safety Policy”) related to preventing transmission of COVID-19.  The Health and Safety Policy must require that all employees, customers, and visitors wear face coverings as set forth above.

The City’s Order continues to include, “Construction Requirements”, that impose additional requirements upon construction contractors.  For instance, the “Site Manager”, which is typically the general contractor, but may also be a subcontractor for sites with no general contractor, must ensure workers practice social distancing and adhere to the required face covering behaviors during “non-construction activities and, to the greatest extent possible, during construction activities, with careful attention paid to ‘choke points’ and ‘high-risk areas’ . . . such as hallways, hoists and elevators, and break areas.”

3.   Gatherings

The Orders limit gatherings at any outdoor area, event, or establishment of no more than 10 persons. As with the face covering order, there are numerous exceptions to the gathering-size limitation.  The exception one with the most impact on the construction industry in Texas is for services listed by the U.S. Department of Homeland Security’s Cybersecurity and Infrastructure Agency (CISA),  Governor Abbott has long ago defined residential and commercial construction as CISA Essential Services that are exempted from gathering-size limitations.  The Orders does not change that designation.

A violation of the Orders is considered a misdemeanor punishable by a fine not to exceed $1,000, but not by confinement. Each day or a portion of each day during which the violation occurs or continues constitutes a separate offense. Individuals, rather than businesses, who violate the facial covering requirements will be issued a verbal or written warning, followed by a maximum fine of $250 if the violation continues. Each subsequent violation shall be punishable by a fine not to exceed $250 per violation.

The other major cities in Texas, such as Dallas, Houston, and San Antonio, have all issued similar Orders with respect to face covering requirements, business implementation of a Health and Safety Policies, and/or the size limitations on gatherings. However, Austin has been the first to extend its Order through December 15, 2020.

We are here to help you

Our attorneys in Dallas and Austin, working remotely during the pandemic, are available to answer any questions you may have about your contractual or legal rights and to help you navigate these uncharted waters.  Contact us at info@gstexlaw.com if you have any questions.

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