As companies of all types and sizes continue to deal with the potential legal implications of the COVID-19 pandemic for their businesses, Jackson Walker provides insights and resources on the COVID-19 Legal Resources & Insights site.
On March 2, Governor Greg Abbott issued Executive Order GA-34 lifting the state’s COVID-19-related occupancy limits and mask requirement, except in areas with high COVID-related hospitalizations.
San Antonio Order
On Tuesday, March 9, the eve before GA-34 was set to become effective, Bexar County Judge Nelson Wolff issued Executive Order NW-20 to continue the local disaster declaration and public health emergency for Bexar County. On March 9, the City of San Antonio issued its 13th Addendum to its 8th Declaration of Public Health Emergency Regarding COVID-19, mirroring the Bexar County executive order.
NW-20 requires local businesses to continue to post and implement a Health and Safety Policy in a visible location on the business’s premises. The Bexar County Executive Order NW-20 leaves the particular elements of the policy to the discretion of local businesses, however, it expressly requires that the posted policy include a policy on wearing a face mask. In addition to face masks, the order recommends that local businesses consider the specific needs of its business operation and address issues such as:
- requiring customers to maintain six feet of separation;
- implementing voluntarily developing occupancy limitations; or
- implementing screening procedures such as temperature checks or health screenings.
In the event that a business implements and posts a Health and Safety Policy requiring patrons to wear a face covering, that business is free to refuse service and request that a non-compliant patron leave the business. Further, if the non-compliant patron refuses to leave, NW-20 permits a business to call on legally authorized officials to remove any individual refusing to comply in accordance with trespassing laws. A conviction for criminal trespass is normally a Class B misdemeanor, which is punishable by a maximum fine of $2,000 and up to 180 days in jail. In explaining this order, county officials are quick to note that the recourse provided in NW-20 is different than being arrested for refusing to wear a mask because commercial businesses have always been empowered to call upon law enforcement in the event that an individual refuses to comply with posted policies.
NW-20 will remain in effect and continue until 14 days following the termination of Governor Abbott’s statewide public health emergency unless otherwise extended, modified, or terminated.
Austin Order
On March 9, the day before Governor Abbott’s GA-34 took effect, the City of Austin announced that public health rules adopted by the joint Health Authority for the City of Austin and Travis County would remain in place through April 15, 2021.
The current City of Austin rules generally require businesses and other establishments to impose and post health and safety policies that require, among other things, most individuals to wear a mask, enhanced cleaning requirements, limits on the size of group gatherings, and social distancing. The current City of Austin rules generally require individuals to wear a face covering when outside of their residence. Separate but very similar rules generally require the use of masks outside the home and health and safety policies for businesses and other establishments in unincorporated areas of Travis County. Citing GA-34’s prohibition on local government mask mandates (except in areas with high COVID hospitalization rates), the Texas Attorney General’s office has announced that it is considering action to prevent enforcement of the Austin and Travis County rules.
Conclusion
Although a posted Health and Safety Policy has been a requirement in the City of Austin and in Bexar County for some time, it is important to have a conversation with an experienced attorney to review and update policies in light of recent changes to state and local orders. In consultation with counsel, businesses should consider potential scenarios, possible exceptions and the implication of other laws that may be applicable to the public and the businesses’ employees. There is a significant difference between enforcement of a company policy as compared to an act of government that must be carefully considered with the aid of an experienced advisor.
