Our fight against the novel coronavirus in Texas is not going well.  

The State quickly reopened for business after a lengthy shelter-at-home period.  Newly reported cases and hospitalizations in Texas for the month of June have reached unprecedented levels.  Under pressure from the mayors and county judges from the State’s largest population centers, Governor Abbott recently clarified that local authorities have the power to mandate that businesses require employees and visitors to wear face coverings.  

Reminiscent of the patchwork of shelter-at-home orders that Texas cities and counties began issuing in March 2020, several cities and counties have issued and others are continuing to issue orders requiring employers to implement plans that mandate employees and visitors wear face masks.  The distinction between the first set of face covering orders in March 2020 and the current ones is striking in at least one regard: The current set places the onus on employers, not employees or individuals.

There are significant variations between the various cities’ and counties’ orders, particularly their expiration dates, mandating a careful review for the ones applicable to your workplaces and job sites. 

Since Austin and Bexar County (home to San Antonio) were among the first to implement face covering orders, we will focus our discussion on those two jurisdictions.

1.    Austin

The City of Austin’s order provides a good starting point for our discussion.  The City’s order requires that “all commercial entities…providing goods or services directly to the public must develop and implement a health and safety policy related to COVID-19”.  The policy “must require at a minimum” that all employees and visitors wear face coverings while on the commercial entity’s business premises or other facilities.  

Commercial businesses were required to implement a plan by June 23, 2020 and post that plan in a visible location such that all employees and visitors have notice of the health and safety requirements.  The City’s Order remains in effect until 11:59 p.m. on August 15th.  

There are exceptions to compliance with the Order, as follows:

1. When the person is alone in a separate single space, whether indoors or outdoors
2. When the person is in the presence only of other members of the household or residence, whether indoors or outdoors;
3. When wearing a mask poses a greater mental or physical health, safety or security risk;
4. When the person is outdoors engaged in an allowed activity alone or with only members of the same household or residence or while maintaining consistent 6 feet of social distance from others and engaged in authorized conduct under Governor Abbott’s order; and
5. When the person is eating or drinking in a restaurant or bar.

2.    Bexar County

A mere 80 miles, but a world away, from Austin, Bexar County has taken a slightly different approach.  Much like Austin, Bexar County is requiring that all commercial entities in the County develop and implement a “Health and Safety Policy”.  The Policy must require, “at a minimum”, that all employees and visitors to the commercial entity’s business premises or other facilities wear face coverings when in an area or performing an activity which will necessarily involve close contact or proximity with co-workers or the public where six feet of separation is not feasible.  

Commercial businesses must post the Policy in a conspicuous location sufficient to provide sufficient notice to employees and visitors of all health and safety requirements.  Failure to develop and implement a Policy may result in a fine of $1,000 for each violation.  Bexar County’s order became effective at noon on June 22, 2020 and was set to expire at 11:59 p.m. on June 30, 2020.  Given the dramatic rise in the COVID-19 infection rate in Bexar County and across the State, it is likely that Bexar County (and many of the other counties and cities whose orders are set to expire on June 30th) will push out the expiration date to mid-August.

Bexar County is also requiring that all persons over 10 years old wear a face covering over their nose and mouth when in a public place where it is difficult to keep 6 feet away from other people or working in areas that involve close proximity with other coworkers.  

There are exceptions to Bexar County’s order, as follows.

1. When exercising outside or engaging in physical activity outside;
2. While driving alone or with passengers who are part of the same household as the driver ;
3. When doing so poses a greater mental or physical health, safety, or security risk;
4. While pumping gas or operating outdoor equipment;
5. While in a building or activity that requires security surveillance or screening, for example, banks; and
6. When consuming food or drink.

3.    What counties and cities currently have face covering orders in place?

Our website has a summary of face covering orders as well as the orders themselves. 

4.   What does this all mean?

For employers across the State, adherence to the orders presents another layer of uncertainty in an already challenging economic environment.  As with the shelter-at-home orders, the face covering orders present particular concerns for companies operating facilities or job sites in multiple cities or counties in the State.  

The juridictions’ somewhat uniform language that face coverings are a “minimum” requirement also creates later opportunities to argue that employers should have included more stringent requirements in their health and safety policies to safeguard employees and visitors alike, even if those other requirements were not mandated by order.  Unfortunately, there is no State-wide order providing uniform guidance to all commercial employers operating across all jurisdictions in Texas.

The attorneys in our Austin and Dallas offices are available, mask over nose and mouth, to assist you in understanding and complying with the orders, including developing a health and safety policy.

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