– April 6, 2020
By Brad Nitschke
After Texas Governor Greg Abbott issued an Executive Order superseding local public health orders to the extent they prevented federally designated critical infrastructure businesses to operate, Dallas County Judge Clay Jenkins extended and twice amended Dallas County’s shelter-in-place order. As amended, the Dallas County order is now set to expire at 11:59 p.m. on April 30, 2020.
Substantive amendments to the Order include:
- Critical Manufacturing and Distribution: To conform to Governor Abbott’s Executive Order, redefining “Critical Manufacturing and Distribution” as those industries listed in new guidelines published by the federal Cybersecurity and Infrastructure Security Agency (CISA 2.0), available here.
- Requiring all Critical Manufacturers and Distributors to comply with a new set of Rules for Manufacturers and Distributors. Those rules:
- Impose mandatory worker temperature checks before leaving home and before beginning work, and a ban on employees with a temperature of more than 99.6 degrees Fahrenheit going to or starting work.
- Ban worker gatherings during meals or breaks.
- Require six feet of separation between employees except where employee safety requires otherwise.
- Require employers to adjust shift timing to increase physical distancing to the extent possible.
- Mandate that non-essential workers “must” be allowed to work from home “when possible.”
- Require employers to provide soap and water or hand sanitizer.
- Require employees to wash hands before food preparation, before and after using shared items, after meals and restroom breaks, and immediately before leaving work.
- Require employers to discourage workers from sharing tools when possible.
- Dictate 15-minute rest breaks every four hours to allow employees to follow hygiene guidelines.
- Prohibit adverse action against an employee who is quarantined or told to self-quarantine, failed to report to work because of a fever, or requested to use paid sick leave under the employer’s policy.
- Require employers to designate a member of management as a COVID-19 Safety Monitor and a senior hourly worker as COVID-19 Vice Safety Monitor “at each site to have the authority to enforce these rules.”
- Requiring all Critical Manufacturers and Distributors to comply with a new set of Rules for Manufacturers and Distributors. Those rules:
- Essential Retail: Consolidates and imposes a similar set of mandatory Rules for Essential Retail Establishments, including grocery stores, gas stations, “businesses needed for transportation,” pet food and supply stores, and other essential, in-person retail businesses.
- Construction Industry Safety Rules: Formalizes the County’s Rules for Construction Industry and changes those rules to require employers to reduce shift staffing by 50% only “to the greatest extent possible.”
- Essential Business Telecommuting: Directing employees of Essential Businesses “whose physical presence at the workplace is not essential to operations” to telecommute to the fullest extent possible.
- Childcare: Clarifies that “childcare services shall only be provided to employees of Essential Businesses,” and then are subject to specific staffing and social distancing guidelines set out in the Order.
- Adverse Employee Actions: Purports to prohibit employers from implementing “any rules making a negative COVID-19 test or a note from a healthcare provider a requirement before a COVID-19 recovered employee can return to work.”
- Unions: Clarifies the scope of the permissible ongoing work of union representatives and their staff as “performing critical labor union functions, including the maintenance of health and welfare funds and checking on the well-being and safety of members.”
- Laboratory Reporting: Requires daily reporting by laboratories performing COVID-19 testing of the number of tests performed and number of positive test results.
- Purchasing Limit Exemption: Exempts essential businesses and government organizations from toilet paper purchasing limits.
- Tenant Liability; Late Fees: Clarifies that Dallas County’s earlier suspension of eviction hearings and writs of possession does not “relieve tenants of liability for unpaid rent” and provides that landlords “should cap late fees for delayed payment of rent at fifteen dollars ($15) per month.” The Order is silent as to the whether this provision is intended to apply to both commercial and residential leases.
For a discussion of the version of the Order in place immediately before the March 31 and April 3 amendments, see below. Except where noted above, the provisions of those earlier orders generally remain in effect.
– March 31, 2020
By Brad Nitschke, Mike Moran, & Shelisa Brock
Just before midnight on March 29, 2020, Dallas County Judge Clay Jenkins amended his prior “shelter in place” orders requiring most Dallas County residents to stay home and Dallas County businesses other than those deemed “Essential” to suspend in-person operations. The new order, which went into effect at 11:59 p.m. on March 29, shortly after it was handed down:
- Allows non-Essential Businesses to maintain Minimum Basic Operations, a significant change from prior orders;
- Narrows the scope of construction work allowed under the order and imposes jobsite safety rules on those projects allowed to continue, including requiring a 50% staffing reduction by shift;
- Imposes rules against price-gouging;
- Instructs local government bodies to designate those employees and contractors it considers necessary to the performance of Essential Governmental Functions;
- Redefines the scope of businesses that deliver goods or services directly to residences allowed to continue operating on that basis alone; and
- Reformats and makes several stylistic changes to the Order.
Minimum Basic Operations
Prior versions of the Order limited ongoing business activity to Essential Businesses, and required that all other businesses shut down in-person operations in Dallas County. This created confusion as to whether businesses that were not explicitly designated as Essential could take basic steps to maintain their potentially non-Essential business while the Order is in effect. The March 29 Order permits all businesses to perform “(1) the minimum necessary activities to maintain the value of the business’s inventory, ensure security, process payroll and administrative benefits, or … related functions; and (2) the minimum necessary activities to facilitate employees of the business being able to continue to work remotely from their residences.” Thus, under the March 29 Order, even businesses that are not deemed Essential are permitted to continue in-person operations to the limited extent those activities fit within the definition of Minimum Basic Operations, provided they follow the County’s Social Distancing Rules “to the greatest extent possible.”
The Order previously designated construction for public works, residential, commercial, and schools as critical infrastructure work allowed to continue during the COVID-19 emergency. The March 29 Order continues this designation while carving out certain specific construction projects as prohibited, and imposes significant rules on construction jobsites including by requiring the use of protective measures and cleaning and disinfecting procedures. The March 29 Order purports to ban “discretionary maintenance or improvements” as well as “elective additions and maintenance,” but does not further define those terms. In addition, under the March 29 Order, all employers involved in permitted construction activity in Dallas County must comply with the following rules:
- Require temperature checks of all workers before they leave home and prohibit workers with a temperature of above 99.6 Fahrenheit from going to work;
- “To the greatest extent possible,” implement jobsite temperature checks of all workers, using a forehead thermometer, before they may begin work. If an employee or contractor has a temperature above 99.6 degrees Fahrenheit, then they are to be sent home immediately;
- Implement shift work such that each shift has no more than 50% of the workers who were on shift on March 16, 2020, and prohibit workers from changing shifts;
- Limit crossover of subcontractors;
- Prohibit gatherings during meals or breaks;
- Keep a 6 foot distance between people at all times except where worker safety requires the use of multiple individuals;
- Prohibit workers from using a common water cooler and either provide individual water bottles or instruct workers to bring their own;
- Allow non-essential personnel to work from home when possible;
- Provide soap and water and hand sanitizer in the workplace, including all restrooms. Ensure that adequate supplies are maintained;
- If running water is available on site, impose mandatory handwashing of at least 20 seconds for workers before beginning work, after removing gloves, before and after using shared tools, before and after meal or restroom breaks, and at the end of a shift or work time;
- Provide rest breaks of at least 15 minutes for every four hours worked to allow workers to follow hygiene guidelines;
- Provide one working flushing toilet for every 15 workers on site or one outdoor portable toilet for every 10 workers on site; and
- Designate a COVID-19 safety monitor on each site with authority to enforce these rules.
Additionally, the March 29 Order prohibits “adverse action” against an employee who has been quarantined or advised to self-quarantine due to possible exposure to COVID-19, and threatens to punish a “failure to strictly comply” with the Order with civil enforcement, criminal penalties including a fine of up to $1,000 and/or 180-day jail sentence, and removal of offending general and subcontractors from “the essential business list.”
The March 29 Order adds rules against price-gouging on certain goods, prohibiting any person from selling (a) groceries, beverages, toilet articles, and ice; (b) restaurant, cafeteria, and boarding-house meals; and (c) medicine, pharmaceutical and medical equipment; and supplies, for “more than the regular retail price the person charged for the goods or services on March 16, 2020.” The Order creates a single exception to this rule, applicable “where an increased retail price is the result of increased supplier or other costs (including the loss of supplier supporting funds).” The Order does not mention Texas’ statewide anti-price gouging statute, the Deceptive Trade Practices Act, which already prohibits, among other things, “taking advantage of a [declared] disaster” charging an “exorbitant or excessive price” for certain goods, including food, medicine, and other necessities.
Essential Local Government Contractors
Prior versions of the Order broadly designated those who supplied essential services for Essential Governmental Functions as Essential Businesses. The March 29 Order appears to attempt to narrow this broad designation, by requiring “each governmental body” other than “federal or state government” to determine its “Essential Governmental Functions and identify the employees and/or contractors necessary to the performance of those functions.”
Delivery of Goods/Services
Previously, the Order defined Essential Businesses to include “businesses that ship or deliver groceries, food, hygiene products, good or services directly to residences of essential businesses.” The March 29 Order appears to narrow this definition to read: “Businesses that ship or deliver groceries, food, hygiene products, and essential supplies directly to residences or essential businesses.” Businesses that relied upon the earlier definition to maintain operations should consult counsel to determine whether this change, or other changes to the order, may impact their status as an Essential Business.
The March 29 Order retained certain amendments incorporated in an amendment effective March 24, 2020, including:
- Clarifying that chiropractors, physical therapy, and optometry offices are Essential Healthcare Operations, and that fitness and exercise gyms, personal training, gymnastic studios and similar facilities are not;
- Permitting rideshare companies, such as Uber and Lyft, to remain in operation;
- Designating “[f]irearm and ammunition suppliers and retailers for purposes of safety and security” as Essential Businesses;
- Expanding permitted childcare services to include “community service providers offering childcare services,” and requiring all childcare providers allowed to operate to follow specific spacing, staffing, and capacity rules;
- Limiting restaurant service to take-out, drive-thru, and delivery only; and
- To the “greatest extent possible,” requiring Essential Retail businesses to:
- Designate shopping times for at risk populations (seniors, pregnant people, and people with underlying health conditions);
- Limit the amount of people in a store at once so that social distancing is possible;
- Implement an organized line system where people are spaced at least a few feet apart (ideally 6 feet);
- Implement purchase limits on high-demand items (toilet paper, soap, hand sanitizer); [and]
- Offer pick up or deliveries of grocery items.
Brad Nitschke is a partner in Jackson Walker’s Trial and Investigations & White Collar Defense practices. In addition to representing business and healthcare clients in litigation from demand through trial, Brad has particular experience in investigations and crisis response involving allegations of sexual misconduct, financial impropriety, and health care fraud and abuse.
Michael W. Moran is a business litigation attorney whose practice focuses on construction litigation, real estate litigation, land use and municipal law litigation, eminent domain/condemnation, corporate litigation, surety bonds, and business fraud. His construction clients have included property owners, developers, governmental entities, general contractors, subcontractors, sureties, architects, engineers, and individual corporate officers and directors. He is currently the head of JW’s Construction section.
Shelisa E. Brock is a litigation attoreny who has represented clients across a variety of industries in both state and federal court. Experienced in all phases of litigation, Shelisa has represented clients in a wide range of matters including claims of breach of contract, breach of fiduciary duties, and misappropriation of trade secrets as well as claims regarding business torts and employment disputes. Shelisa has also represented clients in trademark opposition matters before the United States Patent and Trademark Office.
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