On March 2, 2021, Texas Governor Greg Abbott issued Executive Order GA-34, ending Texas’ statewide mask mandate and allowing all businesses to operate at 100% capacity. The Executive Order will take effect on March 10, 2021, giving employers approximately a week to decide how their operations and policies will change, or if they will change, as a result of the Reopening Order.

What do employers need to know about the Executive Order?

Before developing a plan to move forward, businesses will have to make sure they understand what the Order actually provides. The most important thing for employers to understand is that the Order does not require businesses to operate at 100% capacity, does not prohibit businesses from requiring or encouraging mask-wearing by employees and/or customers and does not prohibit businesses from implementing additional safety protocols to reduce the risk of transmission of COVID-19—“Nothing in this executive order precludes businesses or other establishments from requiring employees or customers to follow additional hygiene measures, including the wearing of a face covering.”

While local governments may no longer impose penalties or jail time for failure to wear a mask, officials may enforce trespassing laws to remove violators at the request of a business establishment.

Local county and city governments are prohibited from enacting more restrictive local orders. The only exception to this provision is for trauma service areas that have high COVID-19 hospitalizations, defined as greater than 15% of hospital capacity for at least seven straight days. Such areas may issue orders to slow the spread of COVID-19, but any limits on the capacity of businesses in these areas must allow for at least 50% occupancy. At present, only the region encompassing Culberson, El Paso and Hudspeth counties meets this high hospitalization requirement.

The Executive Order expressly states that “individuals are strongly encouraged to wear face coverings over the nose and mouth wherever it is not feasible to maintain six feet of social distancing from any other person not in the same household. In addition, the Executive Order encourages every person, including businesses, to follow the Texas Department of State Health Services (“DSHS”) health recommendations. As of March 3, those recommendations, as they apply to employers in general, include screening employees and contractors for symptoms of COVID-19 and prohibiting those with symptoms or known exposure from returning to the worksite, requiring employees to maintain social distancing, configuring the work site so that social distancing between employees and customers is possible, encouraging remote work where possible, staggering schedules to minimize close contact between employees and adopting additional cleaning and disinfecting protocols. The DSHS guidance for the prevention of COVID-19 also currently recommends wearing a cloth face-covering in public and during large gatherings.

Should employers eliminate all previously adopted precautions and fully “return to normal?”

While it is up to each employer and each business, the answer to this question will usually be no. The Executive Order eliminates the mask mandate and lifts the limits on capacity, but it does not shield businesses from liability if employees or customers contract COVID-19 on site. As noted above, it encourages individuals and businesses to continue to follow health recommendations from the Texas DSHS and to wear face coverings where social distancing is not feasible. While these measures are encouraged and not required, the Executive Order cannot reasonably be read to justify the elimination of any and all precautions an employer might have taken as a result of the coronavirus pandemic.

Beyond issues of potential liability, eliminating all protocols adopted during the pandemic is very likely to impact both the morale of employees at the worksite and the willingness of employees who have been working remotely to return to the worksite. Employers may also want to consider the impact on employee attendance and continued business operations if the infection rate increases as a result of discontinuing adherence to the DSHS and Center for Disease Control (“CDC”) guidance. Even if many workplace protocols are eliminated or relaxed in light of the Executive Order and the rise in vaccination rates increase, employees may prefer to take additional safety precautions consistent with guidance from the DSHS or CDC. Unless it prevents an employee from performing his or her duties or is otherwise unsafe or disruptive to the business, it is generally best not to prohibit employees from taking such precautions or disciplining them for doing so.

The Order may serve to encourage employees who were opposed to company safety protocols to resist them. As was the case before the Executive Order, and recognizing the possible need for religious or disability accommodation, employees who refuse to comply with any policy or requirement, including a requirement to wear a mask in common areas of the worksite, can be disciplined up to and including termination of employment.

Employers should quickly decide if current policies and procedures should be updated in response to the Order and if additional employer guidelines need to be implemented.

If you have any questions about the Order or its impact on your business, you can contact the authors of this post, Dan Stern ([email protected] or 210-554-5591) or Elizabeth Voss  ([email protected] or 214-698-7820), or any Texas-based member of Dykema’s Labor & Employment group.

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Photo of Dan Stern Dan Stern

Dan works closely and seamlessly with his clients to develop policies, practices, and programs designed to bring clarity and consistency to their overall employment environment in order to minimize potential claims or regulatory scrutiny. He recognizes that even the most well-crafted and well-intentioned…

Dan works closely and seamlessly with his clients to develop policies, practices, and programs designed to bring clarity and consistency to their overall employment environment in order to minimize potential claims or regulatory scrutiny. He recognizes that even the most well-crafted and well-intentioned employment policies won’t serve his clients well if they are not practical or compatible with a company’s operations or culture.

Photo of Elizabeth Voss Elizabeth Voss

Elizabeth provides clients with labor and employment counsel, handling employment-related regulatory compliance matters, and litigating claims arising from the employer-employee relationship. Her clients span several industries and range in size from small closely-held entities to mid-market corporations