Texas Governor Releases Plan to Reopen the State

Ten days prior, in his first steps to reopen the State, the Gov. Abbott issued a series of orders: GA-15, allowing certain elective medical procedures to resume; GA-16, establishing “Retail-to-Go” services; and GA-17, creating the Governor’s Strike Force to Open Texas—a task force of medical experts and business leaders assembled to create a plan for Texas to return to work and resume daily activities. GA-16 expired at midnight on April 30, and immediately thereafter, on May 1, the Governor’s new Order took effect.

The Order 

Reopened Services

In what Gov. Abbott describes as “Phase I” of the State’s reopening, the following “Reopened Services” may now resume operations, subject to the safety protocols discussed in the Guidance section herein:

• Retail establishments, at up to 25 percent of their total listed occupancy;
• Dine-in restaurants, at up to 25 percent of their total listed occupancy;
• Movie theaters, at up to 25 percent of their total listed occupancy;
• Shopping malls, excluding food courts and play areas, at up to 25 percent of their total listed occupancy;
• Museums and libraries, excluding interactive exhibits and play areas, at up to 25 percent of their total listed occupancy;
• Services provided by an individual working in an office alone; and
• Golf course operations.

The Order emphasizes that bars, gyms, hair salons, public pools, and other entertainment venues are still closed, although Gov. Abbott has expressed his intent to have these business open “on or not later than mid-May.” In all likelihood, they will be included in the Governor’s “Phase II” order, anticipated to issue on May 18, after the state has seen two weeks of data regarding the status of COVID-19 in Texas. This second wave of business reopenings is expected to allow Phase I businesses to expand their occupancy up to 50 percent. Should the state see an increase in COVID-19 transmission, hospitalizations, or fatalities, however, orders to scale back or modify the plan are possible.

Whether a Reopened Service resumes operations is entirely up to the business—the Governor has made clear that his new order is not mandatory. Some businesses have already stated they will not be reopening on May 1, and will instead take their time to develop and implement enterprise-specific safety policies. Movie theater chains across the country have decided they will not re-open until mid-summer, including Texas’s own Alamo Drafthouse.

Carve-Out for Some Counties

In what appears to be a concession to rural counties, those counties with five or fewer cases of COVID-19, confirmed as of April 30 or later, may increase retail, restaurant, movie theater, museum and library capacity from 25 percent to up to 50 percent. To qualify for this carve-out, the county must submit the requisite attestation form to the Department of State Health Services (DSHS) certifying that the county has met all the enumerated requirements. The county will revert back to the 25 percent occupancy limit if its COVID-19 cases rise or its hospital capacity declines.

Guidance for Reopened Businesses and their Visitors

Gov. Abbott largely has deferred to businesses and individuals to determine what safety precautions, if any, to take in the wake of these reopenings. Specifically, the Order directs:

• Residents must minimize social gatherings and contact with others, except where necessary to provide or obtain essential or Reopened Services;
• Residents and businesses should follow minimum standards protocols promulgated by DSHS, as well as the guidelines from the president and CDC, but only to the extent they are not inconsistent with DSHS recommendations;
• Face coverings encouraged but not required, and local authorities may not impose civil or criminal penalties for failure to wear one.

Additionally, the Governor has published a number of Open Texas Checklists that outline special precautions for each Reopened Service and its customers. For example, restaurants are encouraged to limit table sizes, use disposable menus, offer single-use condiments, and maintain distance between waiting parties. Included in this is an all employers and employees checklist, which recommends Texas businesses screen employees before they come into the business, quarantine employees with symptoms until they meet the return-to-work criteria, require their employees maintain social distancing and consistently sanitize their hands, and routinely disinfect regularly touched surfaces and items that come into contact with customers.

Texas Attorney General Ken Paxton has also issued updated guidance for religious services. The guidance suggests religious organizations encourage at-risk populations to participate remotely or provide a designated area or time for these populations, keep at least two empty seats between parties while leaving every other row empty, and maintain rigorous sanitation practices.

Preemption

The Order expressly supersedes any conflicting COVID-19 order issued by local officials. As a result, the Order’s prohibition on penalties for lack of face coverings has rendered local orders requiring residents wear face coverings, such as the order recently issued in Harris County, unenforceable. Still, local authorities have already started to amend their local orders to work around this preemption to the greatest extent possible. Bexar County's April 29 amended stay-home order now provides that both essential services and Reopened Services must supply their employees with face coverings and emphasizes the importance of employees and residents wearing these coverings. Harris County has since clarified that, while there is no longer a penalty attached, the face covering order will remain in place.

Regardless, businesses are free to impose and enforce face covering requirements for their employees and customers if they so choose. Costco, for example, recently announced that, starting May 4, all members and guests over the age of 2 must wear face coverings at all times while on the premises.

Governor’s Report to Open Texas

The Report prioritizes three initiatives: ramping up testing, expanding contact tracing, and protecting vulnerable populations.

Testing

Texas is now equipped to perform 15,000 – 20,000 tests a day, with a set goal of 30,000 tests per day in the near future. Tests will be available at over 300 sites across the state, and on 25 mobile testing teams primarily aimed to serve rural areas. These numbers should lead to a significant increase in testing, which, as of April 27, had reached only 290,517 tests—or about 1 percent of the Texas population.

For now, testing is currently focused on hospitalized patients, healthcare workers and first responses, long-term care facilities, and persons over the age of 65. Those with mild symptoms may only receive testing as resources allow. Antibody testing is being investigated but has not been implemented large-scale.

Contact Tracing

Previously a minor component in the State’s COVID-19 mitigation plan, contact tracing has now moved into the spotlight, and will command significant state resources and infrastructure. Contact tracing connects persons with confirmed or suspected cases of COVID-19 to public health staff, who work with the person to determine everyone with whom they have had close contact during the timeframe in which they may have been infectious. Contacts are then quarantined for 14 days to prevent further spread.

Texas’s new contact tracing program will also follow a phased approach:

• Phase I: includes assembling a team, creating plans, establishing IT infrastructure, and recruiting and training 1,157 state and local contact tracers. Phase I was to be completed by April 27;
• Phase II: will add another 1,000 contact tracers, launch a COVID-19 tracing call center, and begin communication with the public about the plan. Phase II was to be initiated by April 27;
• Phase III: anticipates a fully mobilized contact tracing workforce of up to 4,000. Phase III is to be initiated by May 11.

The success of contact tracing will heavily depend on a large, well-trained workforce, and collaboration between state and local authorities.

Rolled-Back Travel Restrictions

Gov. Abbott has rescinded the mandatory 14-day quarantine for individuals traveling from Louisiana. However, other mandatory travel quarantines for California, Connecticut, New York, New Jersey, Washington, Atlanta, Chicago, Detroit, and Miami remain in place.

Conclusion

Texas is charging ahead with a business reopening plan before many states in the country. The effect of that decision remains to be seen. What is known is that Texas will begin reopening its economy in the “new normal” of conducting the state’s business with social distancing measures in place, increased testing for coronavirus, and implementation of a broad contact tracing program to help track and stop the virus’s spread. Capacity in businesses should expand as Texas moves through the phases identified in the Governor’s Report to Open Texas, and travel restrictions should ease, assuming an uptick of cases does not occur with the state’s reopening. Stay safe out there.

Pillsbury’s experienced, multidisciplinary COVID-19 Task Force is closely monitoring the global threat of COVID-19 and providing real-time advice across industry sectors, drawing on the firm’s capabilities in crisis management, employment law, insurance recovery, real estate, supply chain management, cybersecurity, corporate and contracts law and other areas to provide critical guidance to clients in an urgent and quickly evolving situation. For more thought leadership on this rapidly developing topic, please visit our COVID-19 (Coronavirus) Resource Center.