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.

UPDATE: The Harris County order has been extended and will remain in effect until April 30, 2020. The amended order is available here.

On March 24, 2020, Harris County Judge Lina Hidalgo issued a shelter-in-place order (the “Order”) for individuals residing in Harris County, Texas. The Order, issued to slow the spread of the virus that causes 2019 Coronavirus Disease (COVID-19), is effective from 11:59 p.m. on March 24, 2020, until 11:59 p.m. on April 3, 2020. The Order aims to reduce person-to-person contact in light of the contagious nature of the virus and “flatten the curve” by reducing the impact to healthcare providers to protect public health and safety.

Just like other orders issued around the country, the Order mandates that all individuals living within Harris County, which includes Houston and much of its surrounding metropolitan area, to stay at their place of residence, subject to certain exceptions. Specifically, while the Order is in effect, individuals in Harris County are permitted to leave their residences only to engage in “Essential Activities,” to perform or conduct “Essential Governmental Functions,” or to operate “Essential Businesses,” as defined in the Order.

What does this mean?

Unless a business falls within the Order’s definition of “Essential Business,” it must cease all activities at its facilities located within the county while the Order is in effect. Although “Essential Businesses” are allowed to continue operations, they must, to the greatest extent possible, comply with social distancing of at least six feet from any other person. All businesses, whether an “Essential Business” or not, may continue operations remotely by having their employees and contractors work from their own residences.

What are Essential Businesses?

The Order defines “Essential Businesses” to include the following:

• Essential Critical Infrastructure, defined as work necessary to the operations and maintenance of the 16 critical infrastructure sectors identified by the U.S. Department of Homeland Security National Cybersecurity and Infrastructure Security Agency (CISA).

• Essential Government Functions, defined as services provided by local governments and municipalities needed to ensure their continuing operation to provide for the health, safety, and welfare of the public.

• Essential City of Houston Government Functions, defined as all services provided by the City of Houston that the mayor determines to be essential government functions.

• Essential Healthcare Operations, including hospitals, clinics, dentists, pharmacies, pharmaceutical and biotechnology companies, healthcare suppliers, mental health and substance abuse providers, blood banks, medical research, lab services, etc. Also included are home-based and residential-based care for seniors, adults, or children, and veterinary care and all health and welfare services provided to animals. According to the order, this exemption should be viewed broadly to avoid any impacts to the delivery of healthcare.

• Essential Retail, including food producers and service providers such as grocery stores, warehouse stores, furniture suppliers, big box stores, bodegas, liquor stores, gas stations and convenience stores, and farmers’ markets that sell food products and household staples. Food cultivation, including farming, ranching, fishing, and livestock are considered essential retail as well as businesses that ship or deliver groceries, food, goods, or services directly to residences. Restaurants and other facilities that serve and prepare food may continue to do so but only for delivery, drive-thru, or carry out. Laundromats, dry cleaners, gas stations, auto supply, auto and bicycle repair, and hardware stores, are exempted. Businesses that supply products needed for people to work from home are also exempted.

• Providers of Basic Necessities to Economically-Disadvantaged Populations, including businesses that provide food, shelter, and social services.

• Essential Services Necessary to Maintain Essential Operations of Residences or Other Essential Businesses, including trash and recycling collection, mail and shipping, cleaning, maintenance and security, warehouse/distribution and fulfillment, storage for essential businesses, funeral homes, etc. Individuals providing essential services include plumbers, electricians, exterminators, yard and maintenance crews, housekeepers, janitorial staff, pool cleaners and other service providers who provide services that are necessary to maintaining the safety, sanitation, and essential operations of residences and Essential Businesses. Businesses that supply other Essential Businesses with support or utilities needed to operate also fall under this category, as do caregivers and helpers who provide services to seniors and disabled individuals.

• News Media, including newspapers, television, radio, and other media services.

• Childcare and Adult Care Services, defined as such child and adult care facilities providing services that enable employees exempted in the Order to work as permitted.

• Infrastructure, Development, Operation and Construction, including public works construction, construction of housing or other types of construction including commercial, manufacturing, airport operations and aircraft manufacturing, maintenance or repair, water, sewer, gas, electrical, oil refining, roads and highways, public transportation, solid waste collection and removal, internet, and telecommunications systems.

• Transportation, including public transportation; vehicles for hire such as Uber and taxicabs; vehicle and auto dealerships, manufacturers, suppliers, distributors, and maintenance; businesses supporting airport operations; street and highway maintenance and construction; and gas stations.

• Labor Union Functions, defined as critical labor union functions, including the maintenance of health and welfare funds and checking on the well-being and safety of members.

• NASA and the Port of Houston.

• Airports and Related Operations, including airport and airline activities, operations, maintenance, and repairs, and the hotels that serve these Essential Businesses; and

• Professional Services, including legal or accounting services, insurance services, and real estate services when necessary to assist in compliance with legally mandated activities or to further Essential Businesses, essential Government functions, or Critical Infrastructure.

What else should Essential Businesses know?

Infection protocol precautions apply to all Essential Businesses, including practicing social distancing, providing access to hand-washing facilities with soap and water or hand sanitizer, posting a sign instructing members of the public to not enter if they are experiencing symptoms of respiratory illness including fever or cough, and adhering to other general communicable disease control recommendations by public health authorities. Per the Order, the owner, manager, or operator of any facility 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 asking for a copy.

What other provisions are in the Order?

The Order specifically provides that nursing homes, retirement, and long-term care facilities must prohibit nonessential visitors from accessing their facilities unless to provide critical assistance or for end-of-life visitation. Further, gyms, fitness centers, swimming pools and other facilities used for any type of recreational activity must close, along with hair and nail salons, spas, theaters, indoor malls, and the like.

Manufacturers who retool such that a substantial part of their business is to manufacture and produce ventilators, personal protective equipment, or other medical supplies and equipment necessary for the COVID-19 response may apply for an “Essential Business” exemption under the Order. Also, any industry or business that is not an Essential Business may apply for a waiver by completing and submitting an application form, which will be available at www.ReadyHarris.org.  

Recognizing the high demand for delivery of products to grocery stores, supermarkets, warehouse stores, hospitals, and medical facilities during this critical time, the Order additionally suspends, for the next 60 days, any traffic and noise restrictions by Texas cities and local associations that are normally in place so that essential supplies and goods are delivered as quickly and efficiently as possible.

The Order also directs that if someone in a household has tested positive for COVID-19, all residents of the household are required to isolate at home until cleared by a public health authority or medical provider. The Order lists the “Essential Activities” that members of the public may perform without violating the Order. Violations of the Order are punishable by a fine not to exceed $1,000 or confinement in jail for a term not to exceed 180 days.

What are the next steps?

Businesses with operations in Harris County, Texas, should immediately evaluate the effect of the Order on their operations and take any necessary actions to comply.  Businesses may also need to consider revising remote work policies, determining whether and what type of leave is appropriate or required when remote work cannot be performed, and whether furloughs, layoffs, or terminations are necessary now or in the future should the Order be extended. Terminating large numbers of employees may trigger notice requirements under the federal Worker Adjustment and Retraining Notification Act (WARN) for certain employers.  Businesses may be well advised to consult with counsel regarding coverage and obligations under the Order as well as other measures being adopted on the federal, state, and local level in response to the rapidly-evolving COVID-19 situation.