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On Wednesday, March 10, Governor Greg Abbott’s executive order to lift the state’s COVID-19-related occupancy limits and mask requirement goes into effect. While the order removes the state-level requirement, businesses and other establishments retain the right to require customers and employees to wear face coverings. Jackson Walker partners Jamila Brinson and Brad Nitschke join to discuss the Governor’s order and what it means for businesses and employees in Texas.
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Greg Lambert: Hi, everyone. I’m Greg Lambert and this is Jackson Walker Fast Takes. Last week, Texas Governor Greg Abbott’s executive order removed the state’s mask mandate and set March 10th as the new date where any business in Texas can open at 100% capacity. To get a little clarification on what this executive order covers, I asked Jackson Walker attorneys Brad Nitschke and Jamila Brinson to come on and discuss it.
Jamila and Brad, thanks for talking with me.
Brad Nitschke: Thanks, Greg.
Jamila Brinson: Thank you, Greg. Happy to be here.
Greg Lambert: Brad, what does Governor Abbott’s order mean for Texas businesses?
Brad Nitschke: Yeah, that’s a great question, Greg. As you know, earlier in 2020, Governor Abbott issued a series of executive orders that required individuals statewide to wear masks or face coverings when in public and when it was not possible to maintain six feet of social distancing. He also imposed occupancy limits of either 50% or 75% of capacity on a number of businesses across the state.
What Executive Order GA-34 – the one that was issued last week and that will become effective March 10 – what it does is it, number one, removes occupancy limits for businesses and other establishments in this state. What that means for Texas businesses is that they’re free to require employees and customers and other visitors to take whatever hygiene measures the business deems are appropriate with one caveat: The state is not going to require them to do so and the businesses in enforcing that requirement are really just enforcing their own policies. They’re not enforcing some act of a government that controls the behavior of their employees or their customers.
The one caveat that I’ll mention is that for businesses that do choose to require customers or employees or other visitors to wear a mask, it’s important to have a conversation with an attorney with some experience with the Americans with Disabilities Act, to the extent the business is regulated by the ADA, to discuss how to address concerns from employees or visitors that they may be unable to wear a mask or a face covering because of a medical condition.
Greg Lambert: Jamila, what does this mean for the employees of businesses that no longer require the mask-wearing of patrons that are visiting the establishment?
Jamila Brinson: Well, Greg, it depends on what the policies and procedures are of that business. The executive order does not prohibit a business from continuing to include in their business procedures and policies that employees wear masks. For those businesses that have adopted policies of mask-wearing of employees and decide that based on the governor’s order, they will no longer implement those policies, or for those businesses that decide that they won’t require their patrons to wear masks, employers are still required under general regulations of the Occupational Safety and Health Administration (OSHA) to provide a safe working environment for their employees. I think as long as the CDC continues to recommend that certain precautions be taken, employers still need to take that into consideration in order to provide a safe environment for their employees.
Greg Lambert: Brad, what about on the other side of the business owners? What does the order allow them to do?
Brad Nitschke: What the governor’s order says is that businesses and other establishments are free to impose their own mask requirement or to require other hygiene measures to prevent the spread of COVID. What we’ve seen in the few days since Executive Order GA-34 was handed down is we’ve seen a number of businesses around the state announced that they plan to do just that. In fact, the mayors and other local officials in some of the largest cities in the state have announced that city-owned properties in their cities will all have mandatory masks as well. We’ve seen both businesses and government bodies take advantage of the option for individual control that the GA-34 creates.
Greg Lambert: What has been the general reaction from businesses to this order?
Brad Nitschke: Well, I can speak to what’s been announced publicly and I can speak to generally what I’ve heard from clients. Publicly, a number of businesses that operate across the state, maybe most notably the H-E-B chain of grocery stores, have announced that they intend to encourage or require customers to continue to wear masks. Generally, the questions I’ve heard from business owners have centered on how they can also continue to require masks and what the pros and cons of that approach would be going forward.
Greg Lambert: How about the medical community? What’s been the reaction from them on Governor Abbott’s order?
Brad Nitschke: Very quickly after the Governor’s order came down, we saw statements from some of the largest hospital systems in the state and from the Texas Hospital Association and from a number of leaders in the medical community encouraging Texans to continue to wear masks and other face coverings to prevent the spread of COVID. There’s been some concern among public health officials that the state’s low COVID hospitalization numbers right now are still sort of artificially suppressed because of the winter storm that hit Texas and forced a number of hospitals to evacuate. So the theory goes may have led people not to seek treatment or testing for COVID. There’s concern that the hospitalization data the state is using right now may not reflect the true prevalence of COVID in certain communities in the state.
Greg Lambert: Jamila Brinson and Brad Nitschke, thanks for taking the time to talk with me.
Brad Nitschke: Thanks, Greg.
Jamila Brinson: Thank you, Greg.
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The music is by Eve Searls.
This podcast is made available by Jackson Walker for informational purposes only, does not constitute legal advice, and is not a substitute for legal advice from qualified counsel. Your use of this podcast does not create an attorney-client relationship between you and Jackson Walker. The facts and results of each case will vary, and no particular result can be guaranteed.
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Please note: This article and any resources presented on the JW Coronavirus Insights & Resources site are for informational purposes only, do not constitute legal or medical advice, and are not a substitute for legal advice from qualified counsel. The laws of other states and nations may be entirely different from what is described. Your use of these materials does not create an attorney-client relationship between you and Jackson Walker. The facts and results of each case will vary, and no particular result can be guaranteed.
