On March 3, 2021, Governor Greg Abbott issued Executive Order GA-34 to provide that, in all counties in Texas not in an area with high hospitalizations:

a.  there are no COVID-19-related operating limits for any business or other establishment; and
b.  individuals are strongly encouraged to wear face coverings over the nose and mouth wherever it is not feasible to maintain six feet of social distancing from another person not in the same household, but no person may be required by any jurisdiction to wear or to mandate the wearing of a face covering.

The Order, effective March 10, 2021, allows all businesses of any type to open to 100% capacity and ends the state-wide mandatory mask order. However, the Order allows businesses to limit capacity or implement additional safety protocols at their own discretion.  Governor Abbot also included in his Order that if COVID-19 hospitalizations in any of the 22 hospital regions in Texas rise above 15% of the hospital bed capacity in that region for seven straight days, a County Judge in that region may use COVID-19 mitigation strategies.

Even though Governor Abbott has opened the majority of the counties in the State, it will not be as simple for businesses and employers.  Employers once again face the question of what steps they should or must take to prepare for reopening their physical workplaces.  Here are 3 tips to consider when determining how to open with care.

1.    Federal Mask Mandate

If your business involves anything federal-related, you will still have to enforce the Federal Executive Order on mask wearing and social distancing.  Contractors on Federal projects and/or that perform work on job sites that are on federal lands should expect new PPE requirements and possible restrictions/limitations due to social distancing guidelines for personnel.  Wearing a mask and social distancing must be enforced for on-duty, on site federal employees, on-site federal contractors, and all persons in federal buildings and on federal lands. President Biden’s Orders will preempt Governor Abbott’s GC-34 with regard to federal lands, contracts and subsidized activities.

Another consideration is employee travel.  One of President Biden’s Executive Orders applies to federal airports, public transportation (bus, train, plane) who receive federal funding, and air travel.  Mask wearing is still mandatory in those settings, even if the airport or plan is in Texas.

2.    Mitigation Through Proactive Measures

Without any guidance from the Governor, businesses and employers are once again left to decide on their own discretion when and how to re-open workplaces to 100% capacity.  Congressional efforts to grant immunity to employers from COVID-related liability have stalled, leaving employers with potential liability to clients or employees who allege they contracted COVID while on premises.  Even though it is and will be difficult for individuals to establish where they contracted COVID, filing a lawsuit does not require proof, merely allegations. A client or employee can easily allege that the employer’s lack of protective measures created an unsafe condition or hostile workplace environment.

One proactive measure is following and implementing guidance for workplace safety published by the CDC and OSHA and state and local authorities, and contained in orders and rules regarding best practices for workplaces.

Another measure is conducting a risk assessment of existing personal workspaces in light of OSHA’s and the CDC’s guidance, and consider changes that will reduce possible exposure to COVID-19. Options may include installing plexiglass or other solid screens or dividers between work spaces, particularly for open concept office plans where employees sit in close proximity to one another, reconfiguring the work spaces to create more physical distance between employees, limiting or prohibiting the sharing of equipment and devices, and developing a plan to maintain recommended social distancing by postponing planned conferences or large meetings, or even implementing alternating shifts when possible.

Another proactive measure is to review existing cleaning procedures and consider enhancements, particularly for common areas, with cleaning products that the EPA has deemed effective for use against the COVID-19 virus. The CDC also recommends that employers clean and disinfect all frequently touched surfaces in the workplace, such as desks, keyboards, telephones, handrails, and doorknobs. Additionally, employers should discourage workers from using other workers’ phones, desks, offices, or other work tools and equipment, when possible. If shared use of these items is necessary for the workplace, employers should clean and disinfect them before and after each use.

3.    Keep Fairness and Objectivity in the Picture

When deciding to re-open your office, decisions can be hard and should be based on objective criteria and provide reasonable safety measures for all employees.

When an employer re-opens their business, the protocol should not discriminate on the basis of race, color, national origin, sex, and religion.  In evaluating the overall categories of employees being brought back to the office, disparate treatment of employees in a protected class (such as gender or age) should be avoided.

When making these decisions, employers should consult with their HR specialists and employment attorney to make certain that re-opening procedures do not violate Title VII of the Civil Rights Act of 1964, the Texas Labor Code, or any other law pertaining disparate treatment in the workplace.

Non-disparate treatment starts at bringing back employees free of discrimination, but transcends to guarding against discriminatory interactions and communications after the physical workplace has re-opened. As more information is distributed through the news and social media outlets regarding the source of COVID-19, its attributes and/or any medical studies on this virus, employers will want take reasonable measures to prevent this information from being used against employees at the work place or making employees feel discriminated against and/or feel like they are in a hostile work environment.

Existing policies may have to be modified or updated to specifically address discrimination that involves issues or public perceptions that may arise from or relating to COVID-19, its effect on our economy, and/or its effect personally on individuals directly affected by COVID-19.

There is no question that the decision of when and how to reopen a business or the physical workplace is a difficult one, and one that should be made after careful planning and deliberation.  In that regard, it is always a best practice to consult with a human resources manager and legal counsel regarding any employment-related issues.  The attorneys in our Austin and Dallas offices are available to answer any questions you may have.

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