Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
NOTE: Because the COVID-19 situation is dynamic, with new governmental measures each day, employers should consult with counsel for the latest developments and updated guidance on this topic.
On March 24, 2020, Denton County Judge Andy Eads issued a “stay at home” order (Order) for individuals residing in Denton County, Texas, effective as of 11:59 p.m. on March 24, 2020, and continuing through March 31, 2020, unless extended by the Denton County Commissioners Court or rescinded by Judge Eads. Denton County is one of at least 22 Texas counties that have issued, or will be issuing, an order of this type to date.
Similar to other stay at home orders that have been issued around the country, this Order mandates that all individuals living within Denton County “STAY AT HOME” with few narrow exceptions. Specifically, while the Order is in place, individuals residing in Denton County are permitted to leave their residences only to engage in certain “essential activities,” travel to businesses outside of Denton County, provide or perform “essential governmental functions,” or operate “essential businesses,” as such terms are defined in the Order.
Texas Commissioned Peace Officers are authorized to enforce the Order, and violations are subject to criminal and civil enforcement. Specifically, a violation of the Order is a misdemeanor punishable by a fine not to exceed $1,000 or confinement in jail for a term not to exceed 180 days.
What does this mean for businesses operating in Denton County?
Unless a business falls within the Order’s definition of “essential business,” it must cease all activities, with the exception that employees may continue performing work activities from home to the extent possible. Although businesses that are deemed essential by the Order may remain operating from their normal offices and facilities, they must continue to comply with the social distancing guidelines set forth by the CDC, including maintaining six-foot social distancing.
In addition, because the Order requires non-essential businesses in Denton County to cease onsite operations, the Order also affects residents of nearby counties who work in Denton County. Individuals living outside of Denton County who work or conduct business in Denton County for a nonessential business must comply with the Order and work remotely if possible.
What constitutes an “essential business?”
The Order broadly defines an “essential business” to include nine categories of businesses: (1) essential healthcare operations; (2) essential government functions; (3) education; (4) essential critical infrastructure; (5) essential retail; (6) providers of basic necessities to economically disadvantaged populations; (7) essential services necessary to maintain essential operations of residences or other essential businesses; (8) news media; and (9) childcare services. There does not currently appear to be a procedure in place that would allow a business to obtain a provisional designation as an “essential business” under the Order. Instead, the determination seems to be entrusted entirely to businesses, which may be subject to an instruction from local law enforcement to cease operations. Nevertheless, the Order has provided the following guidance to assist businesses in making this determination:
Essential Healthcare Operations: Includes hospitals, clinics, dentists, pharmacies, pharmaceutical and biotechnology companies, veterinarians, mental health providers, substance abuse service providers, medical research, laboratory services, or any related healthcare services. Home-based and residential-based care for seniors, adults, or children are also included. Exercise gyms and similar facilities, however, are not included. All elective medical, surgical, and dental procedures that can safely be cancelled or postponed are prohibited under the Order.
Essential Government Functions: Includes all services needed to ensure the continuing operation of government agencies to provide for the health, safety, and welfare of the public.
Education: Includes the Superintendent, Headmaster, or CEO of a school district, charter school, or private school who shall designate school personnel who are essential to the operation and support of distance-learning for students, preparation and distribution of meals to students, and maintenance/cleaning of facilities during the time of the Order.
Essential Critical Infrastructure: Includes work necessary to the operations and maintenance of public works construction, residential and commercial construction, airport operations, water, sewer, gas, electrical, oil refining, roads and highways, public transportation, solid waste collection and removal, internet, telecommunications systems, banks, financial institutions, pawn shops, safety and security related services, retail firearm sales, defense and national security-related operations, and essential manufacturing operations provided they are carried out in compliance with the six-foot social distancing requirement, to the extent possible.
Essential Retail: Includes food service providers, such as grocery stores, warehouse stores, big-box stores, liquor stores, gas stations and convenience stores, farmers’ markets, and food cultivation, such as farming, hunting, fishing, and livestock. Businesses that ship or deliver groceries, food, goods, or services directly to residences are also included, in addition to restaurants and other facilities that prepare and serve food, but only for delivery, carry out, or drive thru. Schools and other entities that typically provide free services to students or members of the public on a pick-up and take-away basis fall within this classification. The restriction of delivery or carryout does not apply to cafes and restaurants located within hospitals and medical facilities. Laundromats, dry cleaners, gas stations, auto-supply stores, auto and bicycle repair shops, construction supply stores, hardware stores, and stores that supply products needed for people to work from home are included as well.
Providers of Basic Necessities to Economically Disadvantaged Populations: Includes businesses and organizations that provide food, shelter, and social services, and other necessities of life for economically disadvantaged or otherwise needy individuals.
Essential Services Necessary to Maintain Essential Operations of Residences or Other Essential Businesses: Includes trash collection, processing and disposal, mail and shipping services, building cleaning, maintenance and security, warehouse/distribution and fulfillment, storage for essential businesses, as well as funeral homes, crematoriums, and cemeteries. Plumbers, electricians, exterminators, and other service providers who provide services that are necessary to maintaining the safety, sanitation, and essential operations of residences and Essential Businesses are included. Professional services, such as legal or accounting services, property management, and real estate services, RV sales and services for housing, when required to assist in compliance with legally mandated activities, are also covered. Additionally included are businesses that supply other essential businesses with the support of supplies needed to operate.
News Media: Includes newspapers, television, radio, and other media services.
Childcare Services: Includes facilities providing services that enable employees exempted in the Order to work as permitted.
Of particular importance, the Order does not appear to draw a distinction between nonessential and essential operations within a single operating business. Thus, businesses exempted as an “essential business” may continue all operations, including back office and supporting operations. In addition, any manufacturer that retools so that a substantial part of its business is for the purpose of manufacturing and producing ventilators and other medical equipment may qualify for an “essential business” exemption under the Order; however, the procedure for requesting such an exemption is not clear at this time.
As the response to COVID-19 is constantly evolving, businesses should continue to monitor developments taking place at the federal, state, and local levels and contact legal counsel to assist with questions regarding their coverage and obligations under these types of orders.
Texas Counties and Cities with Stay-at-Home Order Issued or *Forthcoming