By Christopher Mugica
On March 24, 2020, the City of Austin and Travis and Williamson counties each issued a “shelter in place” order to remain in effect until April 13, 2020, unless extended. The Orders generally require residents to remain at home except when engaged in Essential Activities or working for Essential Businesses, Critical Infrastructure, or Government Functions. City and County officials have advised that if an activity or business is not specifically defined or described in the Orders, the activity and/or business is not permitted. All public or private gatherings outside a single household or single-family living unit and all travel are prohibited unless specifically permitted by the Orders.
Essential Activities for which residents may leave home include:
- Health and Safety Activities: Activities or tasks essential to the health and safety of the individual or their family or household members and pets (including in another household) to work or obtain services at any Healthcare Operations (e.g. obtaining medical supplies or medication, visiting a healthcare professional, or obtaining supplies needed to work from home).
- Necessary Supplies and Services: Activity to obtain necessary services or supplies for themselves and their family or household members and pets or to take care of others (e.g. obtain groceries or food, pet supplies, and other household consumer products and products necessary to maintain the safety, sanitation, and operation of residences).
- Outdoor Activity: Outdoor activities, as long as all involved maintain appropriate Social Distancing (e.g., walking, biking, hiking, or running).
- Work for Essential Business or Government Functions: Perform work for Essential Businesses or Essential Government Functions or otherwise carry out activities specifically allowed in the Orders.
The Orders cover all businesses, including nonprofit, for-profit, or educational, regardless of the nature of its structure, functions, or corporate or entity or structure, except Essential Businesses and Government Functions.
All Essential Activities, Essential Businesses and Government Functions, as defined in the Orders, may continue the following activities as long as the following Social Distancing Requirements are met:
- Maintain at least a six-foot distance from other individuals;
- Hands must be washed with soap and water for at least 20 seconds (or using hand sanitizer) and as frequently as possible;
- Coughs and sneezes should be covered, preferably into sleeve or elbow (not hands);
- High-touch surfaces should be cleaned on a regular basis; and
- Persons should refrain from shaking hands.
Businesses not exempt from the Orders must cease all activities at facilities within the jurisdiction, but may continue operations consisting of exclusively employees or contractors working from home. Notwithstanding the foregoing, businesses are authorized to maintain Minimum Business Operations subject to the Social Distancing Requirements, including
- Minimum necessary activities to maintain the value of the business’s inventory, ensure security, process payroll and employee benefits, or for related functions; or
- Minimum necessary activities to facilitate employees of the business being able to continue to work remotely from their residences.
Under the Orders, Essential Businesses include:
- Healthcare Operations: Businesses that provide or deliver healthcare services, including:
- Hospitals, clinics, dentists, pharmacies, pharmaceutical and biotechnology companies, and other healthcare facilities.
- Veterinary services.
- Healthcare suppliers, home healthcare services providers, mental health providers, and substantive abuse providers.
- Also included are related retail sales and/or ancillary healthcare services.
- While the Orders reflect that Healthcare Operations is to be construed broadly to avoid any impact on the delivery of healthcare, specifically excluded from this exemption are fitness and exercise gyms. In Austin and Travis County, the Orders do not permit the further operation of retail outlets that sell e-cigarettes or CBD products. The Orders from Travis and Williamson Counties noted that Healthcare Operations do not include elective medical, surgical, and dental procedures.
- Groceries and Essential Supplies Retail
- Food service and food distribution providers, including grocery stores, warehouse stores, big-box stores, liquor stores, food banks, convenience stores, and farmers’ markets that sell food products, pet supplies, and household products necessary to maintaining the safety, sanitation, and essential operation of residences.
- Businesses that ship or deliver groceries, food, goods, or services directly to residences or provide for pick-up options.
- Food cultivation (i.e., farming, livestock, and fishing).
- Businesses that supply products necessary to allow people to work from home.
- Grocery stores, pharmacies, and liquor stores are required to establish controls to maintain Social Distancing of six feet, limit the number of customers permitted in the store at one time, and increase the use and capability of drive-through, curbside, or delivery services.
- Social Services, Charitable Organizations, and Home-Based Care and Services
- Businesses providing food, shelter, social services, and other necessities of life for economically disadvantaged or otherwise needy individuals.
- Home-based care for seniors, adults, or children, including caregivers who may travel to provide care.
- Residential facilities and shelters for seniors, adults, children, and animals.
- Home/Work/Transportation Related Support Services
- Laundromats, dry cleaners, and laundry service providers and businesses that supply products needed for people to work from home are included in Household Staples Retail.
- Businesses that supply products necessary to allow people to work from home.
- Gas stations and businesses necessary for transportation (e.g., dealerships, manufacturers, auto supply and repair).
- Mail and delivery services, including shipping services and post office boxes.
- Aircraft, taxis, and other private transportation providers (e.g., Uber & Lyft) that provide transportation for Essential Activities, Essential Businesses, Critical Infrastructure, Essential Government Functions, or Essential Travel.
- Businesses that provide residential or commercial moving services and supplies.
- Off-Premises Food Consumption
- Restaurants and other facilities that prepare and serve food, provided that said food is for delivery or carry out only.
- Schools and other entities that typically provide free services to students or members of the public on a pick-up/take-away basis may continue.
- Schools or other facilities providing food services under this exemption may not allow food to be eaten on site or any other gathering site.
- Businesses that ship or deliver groceries, good, goods, or services directly to residences are exempted.
- Services to Maintain Operations of Residences or Support Exempted Businesses or Critical Infrastructure
- Plumbers, electricians, exterminators, pool cleaners, and other service providers who provide services to maintain the safety, sanitation, and operations of residences, Essential Activities, Essential Businesses, Essential Government Functions, or Critical Infrastructure, including but not limited to utilities, electricity, gas, water, and wastewater and other public works.
- Any business that supplies other Essential Businesses, Critical Infrastructure, and Essential Government Functions with support, supplies, or components, including technology, paint, electrical or plumbing material, sanitary equipment, medical equipment, or food and beverages.
- Professional services, such as legal or accounting services, insurance services, and real estate services when necessary to assist when necessary to assist in compliance with legally mandated activities (such as filing of taxes) or to further Essential Businesses, Essential Government Functions, or Critical Infrastructure.
- Education and Research: Educators or other personnel supporting public and private K-12 schools, colleges, and universities for purposes of facilitating distance learning, performing critical research or other essential functions, but subject to the Social Distancing requirements to the greatest extent possible.
- IT Services: Activity to provide or maintain internet, and telecommunications systems including the provision of essential global, national, and local infrastructure for computing services, business infrastructure, communications, and web-based services.
- News Media: Newspapers, television, radio, and other media services.
- Financial Institutions: Banks, credit unions, consumer lenders, appraisers, title companies, insurance companies, underwrites, agents, brokers, and related insurance claim agents and other financial institutions including pawn shops.
- Childcare Services: Childcare facilities providing services that enable individuals exempted from the Orders to work as permitted, provided that said facilities operate under the following mandatory conditions:
- In Austin and Travis County, childcare must be carried out in groups of 10 or fewer, and the composition of the group must remain the same each day (Williamson County allows groups of 12 or fewer);
- Children may not change from one group to another;
- If more than one group exists at a facility, each group shall be kept in separate rooms and may not mix with one another; and
- Childcare providers must be assigned to and stay with a single group.
- Funeral Services: For example funeral homes, crematoriums and cemeteries.
Essential Governmental Functions includes all services related to the continuing operations by government agencies to provide for the safety and welfare of the public (e.g. public safety and law enforcement, jails, detention centers, fire, and EMS) and includes emergency personnel, court personnel, child protection personnel, and companies (and subcontractors) under contract with State or Federal Governmental Entities for which they are required to stay open. Also included are any persons working for or to support Essential Businesses or Critical Infrastructure.
Under the Orders, Critical Infrastructure includes a wide range of businesses and industry:
- banking and financial institutions;
- transit and transit facilities, transportation services, equipment and facilities;
- power, water, telecommunications, natural gas, and public utilities;
- critical manufacturing including components for primary metals, machinery, electrical equipment and components, health and safety products and equipment, and transportation equipment;
- information and communications, including press;
- emergency services;
- public health and medical services;
- fire and law enforcement;
- public works;
- agriculture and food;
- airport facilities and operations;
- sanitation services;
- other government buildings or facilities; and
- Construction, including public works construction, and construction of affordable housing or housing for individuals experiencing homelessness, social services construction, and other construction that supports essential uses, including essential businesses, government functions, or critical infrastructure, or otherwise as required in response to this public health emergency.
Additionally, the City of Austin Order adds to the listed Critical Infrastructure the following categories:
- auto and vehicle parts manufacturing and assembly plants;
- technology manufacturing companies; and
- personnel and industries identified in the U.S. Department of Homeland Security Cyber and Infrastructure Security Agency’s (CISA) Essential Critical Infrastructure Workforce Memorandum dated March 19, 2020 to continue their operation appropriately modified to account for CDC workforce and consumer protection guidance.
Importantly, violation of these Orders is a misdemeanor that is punishable by a fine not to exceed $1,000.00 and/or confinement not to exceed a 180-day jail sentence.
 Although not part of its Order, the City of Austin later issued a Guidance for the Construction Industry, which suggests that its Order allows some types of construction activities to be Critical Infrastructure, but generally, “commercial and residential construction activities are prohibited under the Order except in the very limited situations where the construction involves one of the specific types of essential and critical facilities listed in Exhibit B, Part 1.p. of the Order.” Conversely, Williamson County specifically lists “Residential, transportation, and commercial construction” as Essential Businesses that are permitted to continue operations.
City and County COVID-19 Websites:
JW COVID-19 Resources:
- JW Coronavirus Insights & Resources webpage »
- COVID-19 & Your Business: Frequent Questions »
- e-Newsletter: COVID-19 Updates: Employer Tools & Additional Relief, Texas Delays Elections, IRS Extends Deadlines »
- e-Alert: Gov. Abbott Issues Executive Order to Mitigate Spread of COVID-19 in Texas »
- e-Alert: Dallas County Issues “Shelter in Place” Order to Mitigate Spread of COVID-19 »
- e-Alert: Fort Worth and Tarrant County Issue Stay at Home Declarations »
- Webinar: “COVID-19 & Your Business: Families First Coronavirus Response Act” »
Austin partner Christopher R. Mugica has a broad commercial litigation practice that includes fiduciary litigation, first-party insurance defense, and consumer and employment litigation. Chris has handled a wide variety of complex commercial matters for clients, including class action, fraud, and fiduciary litigation. He also has sophisticated experience in real estate litigation representing developers, lenders, and property owners associations.
Please note: This article and any resources presented on the Jackson Walker Coronavirus microsite do not constitute legal or medical advice.