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 22, 2020, Dallas County Judge Clay Jenkins issued a “shelter in place” order (“Order”), available here, for individuals residing in Dallas County, Texas, effective as of 11:59 p.m. on March 23, 2020, and continuing until 11:59 p.m. on April 3, 2020. The owner, manager, or operator of any facility or business that is likely to be impacted by the Order is strongly encouraged to post a copy of the Order onsite and to provide a copy to any member of the public requesting one.
Similar to other “stay at home” orders that have been issued around the country, this Order mandates that all individuals living within Dallas County shelter in place—that is, stay home—with few narrow exceptions. Specifically, while the Order is in place, individuals in Dallas County are permitted to leave their residences only to engage in certain “essential activities,” provide or perform “essential governmental functions,” or operate “essential businesses,” as such terms are defined in the Order. Violators of the Order may face a fine or jail time.
The purpose of the Order is to “flatten the curve” and prevent the rapid spread of the novel COVID-19 disease from overrunning the county’s healthcare system. To that end, although the Order has been put in place for only an initial 11-day period, projections of the rate of COVID-19’s spread under various restrictions (e.g., no action, three months of “social distancing,” three months of “shelter in place,” and three months of “Wuhan-style lockdown”) indicate that the Order may be required to remain in place for up to three months in order to adequately “flatten the curve.” Judge Jenkins expects the county commissioners to extend the April 3 deadline. Businesses should, therefore, be prepared for the Order to remain in place for an extended period of time.
What does this mean for businesses operating in Dallas County?
Unless a business falls within the Order’s definition of “essential business,” it must cease all activities, with the exception that employees and contractors may continue performing work activities from home to the extent possible. Although businesses that are deemed an “essential business” by the Order may remain operating from their normal offices and facilities, they must continue to comply with the social distancing guidelines provided by the Dallas County Health and Human Services to the greatest extent possible. Furthermore, whether or not a business constitutes an “essential business,” all businesses are permitted to continue operating remotely, with employees and contractors performing work from their residences.
In addition, because the Order requires non-essential businesses in Dallas County to cease onsite operations, the Order also affects residents of nearby counties who work in Dallas County. Individuals living outside of Dallas County who work or conduct business in Dallas 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 eight categories of businesses: (1) essential healthcare operations; (2) essential government functions; (3) essential critical infrastructure; (4) essential retail; (5) providers of basic necessities to economically disadvantaged populations; (6) essential services necessary to maintain essential operations of residences or other essential businesses; (7) news media; and (8) childcare facilities. 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 shut down. Nevertheless, the Order has provided the following guidance to assist businesses in making such 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.
- 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, financial institutions, defense and national security-related operations, and essential manufacturing operations provided they are carried out in compliance with the six-foot social distancing requirement.
- Essential Retail: Includes food service providers, such as grocery stores, warehouse stores, big-box stores, bodegas, liquor stores, gas stations and convenience stores, farmers’ markets, and food cultivation, such as farming, fishing, and livestock. Businesses that ship or deliver groceries, food, goods, or services directly to residences are also included. Restaurants and other facilities that prepare and serve food, as well as microbreweries, micro-distilleries, or wineries may continue offering take-out, delivery, or drive-through services, but are not permitted to provide any dine-in services. Laundromats, dry cleaners, gas stations, auto-supply stores, auto and bicycle repair shops, hardware stores, and stores that supply products needed for people to work from home are included, as well. Religious and worship services may be provided by video and teleconference only.
- 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, when necessary to assist in compliance with legally mandated activities, and businesses that supply other essential businesses with the support of supplies needed to operate, are covered also.
- News Media: Includes newspapers, television, radio, and other media services.
- Childcare Facilities: 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 may apply 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 experienced legal counsel to assist with questions regarding their coverage and obligations under these types of orders.