By Brad Nitschke
Texas Governor Greg Abbott’s May 5 announcement of Phase II of his plans to reopen Texas businesses expanded the scope of office-based and manufacturing work allowed to operate across the state, and implemented new workplace safety rules for offices and manufacturers. Under the governor’s Executive Order GA-21, all offices and manufacturers across the state may resume operations effective 12:01 a.m. on May 18, 2020, although such operations previously considered nonessential must operate at reduced capacity.
Continuing Office-Based and Manufacturing Essential Services
Currently, in Phase I, only those office-based and manufacturing activities deemed Essential Services because they were listed in version 3.0 of the federal Cybersecurity and Infrastructure Security Agency (CISA)’s Advisory Memorandum on Identification of Critical Infrastructure Workers During COVID-19 Response (CISA 3.0) are permitted to operate statewide. In Phase II, office and manufacturing workplaces included in CISA 3.0 will still be permitted to operate across the state at full capacity as Essential Services. This includes certain workers providing direct clinical care or healthcare support, workers in the petroleum and natural gas industries, and critical manufacturing workers.
View full text of CISA 3.0 »
Insights: Governor Abbott’s Order Updating Essential Critical Infrastructure Areas Adds Clarity for Certain Construction Activities »
New Office-Based and Manufacturing Reopened Services
Office-based services, which are not currently allowed to operate as Essential Services in Phase I because they are not listed in CISA 3.0, may resume limited operations effective May 18, 2020, as Reopened Services. Executive Order GA-21 limits those office-based Reopened Services to on-site work performed by the greater of (a) five workers or (b) 25% of the total office workforce. Office workers performing Reopened Services must “maintain appropriate social distancing.” While Executive Order GA-21 does not expressly define “minimum appropriate social distancing,” it encourages those providing Essential Services or Reopened Services to “use good faith-efforts and available resources” to follow minimum health standards published by the Department of State Health Services and available here.
New Manufacturing Reopened Services
In addition to Essential Service manufacturing operations allowed under CISA 3.0, Executive Order GA-21 allows all manufacturing activities to resume statewide in Phase II. Manufacturing activities not deemed Essential Services by a reference in CISA 3.0 may operate as Reopened Services, and are limited to “up to 25 percent of the total listed occupancy of the facility.” Whether operating as Essential Services or Reopened Services, “all manufacturers choosing to operate in Texas” are encouraged to make a good-faith effort to comply with new DSHS recommended health protocols.
New and Updated DSHS Minimum Health Protocols
In conjunction with the expanded scope of services allowed by GA-21, the Department of State Health Services updated its prior minimum health protocols for individuals and employers allowed to operate around the state, and published new guidelines for office-based employers and employees, and manufacturers. Key changes from the prior guidance applicable to all employers include recommendations to:
- For manufacturing facilities with more than 10 workers present at one time, to consider dedicating one person to “ensuring the health protocols adopted by the manufacturing facility are being successfully implemented and followed;”
- For office workplaces, to limit the use of standard-sized elevators to four individuals at a time, each of whom is wearing a mask and standing in a different corner of the elevator;
- Place “readily visible signage” around workplaces to remind workers of best hygiene practices;
- Consider implementing a staggered workforce as workers return;
- Continue to encourage workers to work remotely where possible;
- Apply the guidelines to both employees and contractors performing Essential or Reopened Services;
- Increase the length of time workers confirmed to have or symptomatic for COVID-19 must wait before returning to work after all symptoms improve, from seven days to 10 days;
- Consider state and federal accessibility standards and the needs of “both workers and customers” in implementing precautionary measures; and
- Maintain six feet separation from other individuals not within the same household.
Employers with questions about whether they may return to work or rules applicable to their reopened workplaces should consult an attorney to discuss the specific application of recent federal, state, and local guidance and regulation to their business.
More to Come
As noted in prior articles, the facts, laws, and regulations regarding COVID-19 are developing rapidly and frequently changing. Since the date of publication, there may be new or additional information not referenced in this update. JW will continue to provide up-to-date insights and virtual events regarding COVID-19 concerns. Our most recent insights, as well as information about recorded and upcoming virtual events, are available at the JW Coronavirus microsite.
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 healthcare fraud and abuse.
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Please note: This article and any resources presented on the Jackson Walker Coronavirus microsite do not constitute legal or medical advice.